Session v. State

District Court of Appeal of Florida

Session v. State

221 So. 3d 688, 2017 WL 2814926, 2017 Fla. App. LEXIS 9412

CourtDistrict Court of Appeal of Florida

DecidedJune 28, 2017

DocketNo. 4D15-1525

StatusPublished

This text of 221 So. 3d 688 (Session v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Session v. State, 221 So. 3d 688, 2017 WL 2814926, 2017 Fla. App. LEXIS 9412 (Fla. Ct. App. 2017).

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Opinion

Per Curiam.

Appellant challenges his conviction and sentence for attempted second degree murder. We affirm the conviction without further discussion. We reverse the sentence, however, as the state concedes that the trial court’s comments during sentencing—that appellant’s testimony at trial was “untruthful and not believable” and warranted the maximum sentence—constituted fundamental error. See Cherilus v. State, 199 So.3d 392, 394-95 (Fla. 4th DCA 2016) (finding that defendant was denied due process when the court relied upon his purported untruthfulness as a factor during sentencing, as reliance on such “would create a catch-22—the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial” (quoting Hannum v. State, 13 So.3d 132, 136 (Fla. 2d DCA 2009))); Ward v. State, 152 So.3d 679, 679 (Fla. 4th DCA 2014) (reversing sentence as fundamentally erroneous where judge justified the sentence by stating “I did not find your testimony credible”); Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (holding that “a defendant’s perjury committed while under oath during trial is not a proper sentencing factor” (quoting Bratcher v. State, 743 So.2d 112, 114 (Fla. 5th DCA 1999))). We remand for resen-tencing before a judge other than the original sentencing judge.

Warner, Gerber and Forst, JJ., concur.

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Per Curiam.

Appellant challenges his conviction and sentence for attempted second degree murder. We affirm the conviction without further discussion. We reverse the sentence, however, as the state concedes that the trial court’s comments during sentencing—that appellant’s testimony at trial was “untruthful and not believable” and warranted the maximum sentence—constituted fundamental error. See Cherilus v. State, 199 So.3d 392, 394-95 (Fla. 4th DCA 2016) (finding that defendant was denied due process when the court relied upon his purported untruthfulness as a factor during sentencing, as reliance on such “would create a catch-22—the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial” (quoting Hannum v. State, 13 So.3d 132, 136 (Fla. 2d DCA 2009))); Ward v. State, 152 So.3d 679, 679 (Fla. 4th DCA 2014) (reversing sentence as fundamentally erroneous where judge justified the sentence by stating “I did not find your testimony credible”); Josephs v. State, 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (holding that “a defendant’s perjury committed while under oath during trial is not a proper sentencing factor” (quoting Bratcher v. State, 743 So.2d 112, 114 (Fla. 5th DCA 1999))). We remand for resen-tencing before a judge other than the original sentencing judge.

Warner, Gerber and Forst, JJ., concur.

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Bluebook (online)

221 So. 3d 688, 2017 WL 2814926, 2017 Fla. App. LEXIS 9412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/session-v-state-fladistctapp-2017.

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