Smith v. State, 62 So. 3d 698

Smith was convicted by jury on December 15, 2009, of driving while license revoked as a habitual traffic offender.
The driver’s license suspension and habitual offender status were confirmed by a police officer at trial.
Smith’s fiancée testified she drove to avoid danger due to her migraine; Smith testified he drove to protect them and others.
Smith had a prior burglary conviction; the court imposed a three-year prison sentence for a third-degree felony.
The trial court allegedly considered Smith’s refusal to admit guilt and his asserted innocence as sentencing factors.
The court also criticized the truthfulness of Smith’s testimony and the fiancée’s account, influencing the sentence.
The State conceded that considering these factors was fundamental error, leading to reversal and remand for resentencing before a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sentencing based on guilt admission/refusal and testimony truthfulness was improper	Smith argues the court erred by using innocence assertions and testimony credibility to sentence him.	State concedes the use of improper factors in sentencing.	Improvident factors used; remand for resentencing before another judge.

Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009) (sentencing cannot rely on defendant's innocence assertions or credibility)
Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009) (improper sentencing factors require reversal)
City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985) (truthfulness of testimony not proper sentencing consideration)