Donaldson v. State

16 So. 3d 314, 2009 Fla. App. LEXIS 12817, 2009 WL 2762630

Opinion

DAMOORGIAN, J.

Gaborugh F. Donaldson appeals his convictions and sentences for attempted burglary of a dwelling, possession of burglary tools, grand theft, battery on a law enforcement officer, and resisting arrest without violence. We affirm Donaldson’s convictions on all five counts, but vacate his sentences and remand for resentencing before a different judge because the trial court improperly considered his protestations of innocence and lack of remorse in sentencing him.

In this case, Donaldson pled not guilty, did not testify at his trial, and maintained his innocence throughout the trial and sentencing proceedings. However, at sentencing the trial court expressly considered Donaldson’s protestations of innocence and failure to show remorse in determining what sentence to impose. In so doing, the trial court violated Donaldson’s due process right against self-incrimination. See Holton v. State, 573 So.2d 284, 292 (Fla.1990); St. Val v. State, 958 So.2d 1146, 1146-47 (Fla. 4th DCA 2007); Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006).

Convictions Affirmed; Sentences Vacated and Remand,ed for resentencing before a different judge.

GERBER and LEVINE, JJ., concur.