       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 24, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2952
                        Lower Tribunal No. 12-17979-C
                             ________________


                             Jeremiah Wiggins,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Robert J. Luck,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before SALTER, EMAS and LOGUE, JJ.

     EMAS, J.
      Jeremiah Wiggins appeals his convictions and sentences for possession of

cocaine and marijuana and resisting an officer without violence. We affirm the

convictions without further discussion. For the reasons that follow, however, we

vacate the sentences and remand for a new sentencing proceeding before a

different judge.

       Wiggins was arrested on July 19, 2012, as part of a drug sting operation

conducted by Miami-Dade Police. He was charged, along with two co-defendants

with (1) trafficking in cocaine; (2) possession with intent to sell cocaine; (3)

possession of cocaine; (4) possession with intent to sell marijuana; (5) felony

possession of marijuana; and (6) resisting an officer without violence. Wiggins did

not testify at his trial. Following trial, Wiggins was found guilty of three counts of

cocaine possession, two counts of felony marijuana possession, and resisting an

officer without violence.    The trial court vacated the duplicative cocaine and

marijuana possession charges, leaving a single count of cocaine possession, a

single count of marijuana possession1, and resisting an officer without violence.

      After a presentence investigation was conducted by the Department of

Corrections2 and a presentence investigation report (“PSI”) prepared, the court

1 Although it is not necessary to our decision, we note for purposes of the new
sentencing proceeding that it there is some conflict in the record whether the
judgment and sentence for marijuana possession was for a felony or a
misdemeanor.      While the judgment reflects that this count was a felony, the
Criminal Punishment Code Scoresheet scored the marijuana possession count as a
misdemeanor.

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proceeded to sentencing. At the sentencing hearing, the State sought a sentence of

three years’ imprisonment, and the defense asked for a maximum of eighteen

months in prison. Following presentations from both the State and defense3, and

after reviewing the PSI, the trial court articulated the factors it considered in

fashioning the sentence:

            Okay. There’s a number of factors the Court considers.

            The Court considers, first, the nature and circumstance of
            the offense.

            In this offense, you were a participant in a drug hole in a
            neighborhood in Miami-Dade County, and that is a
            serious offense. It is a serious offense because of the
            offense itself and the danger it imposes. It’s a serious
            offense because of the danger it imposes to those in the
            community. It’s a serious offense because it destroys the
            neighborhood in which you did this in.

            There are a lot of everyday citizens who live in these
            neighborhoods where this drug hole was taking place,
            and you put them all in jeopardy by participating in that.

            I also look to your history and characteristics.

            Mr. Sullivan is right. Your counsel is right. You’re not
            an old person. You’re young, and yet you’ve been
            involved in maybe not the most significant criminal
            history, but some significant criminal acts, including arm
            robbery with a deadly weapon and an attempted arm
            robbery in 2008, which isn’t all that long ago, including

2 See Fla. R. Crim. P. 3.710(a) § 921.231(1), Fla. Stat. (2013) (providing circuit
court with authority to refer case to Department of Corrections for investigation
and preparation of written presentence investigation report prior to sentencing).
3 Wiggins declined to make a statement to the court at sentencing.



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the same sort of crime that you committed here in
Georgia in 2011, for which you were on probation at the
time that you committed this offense, and the same act in
which you were – done here, which is resisting an officer
without violence, which itself is a -- is a terribly violent -
- has the potential to be terribly violent.

And the Court considers that as well.

In addition, the Court considers, in reading the PSI, the
false statement that you made to the officer regarding
your employment situation.

In checking with your father, who you said you were
working with, your father disowned – disavowed any
participation in employment and specifically said that he
was on disability and did not work.

In addition, the statement you made to the probation
officer is that you weren’t involved in this at all, and the
Court takes that into consideration as well.

The Court also takes into consideration the need for the –
the seriousness (indiscernible) to reflect respect for the
law and provide a just punishment.

And the people of this community, who are law-abiding
and who live in this– in the neighborhood especially
where you committed this crime, require that there be a
significant sentence.

I also take into account the deterrence generally for this
sort of crime and also specific deterrence for you
committing this sort of crime, and I believe there is a
need for a deterrence for you to commit future offenses
in Miami-Dade County. And that, too, mitigates in favor
of a significant sentence.

Also believe that this sort of sentence– that this sort of
crime needs to have a significant sentence to warn others


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             who are going to be involved in this exact sort of
             criminal – criminal conduct.

             And so, for that reason, the Court imposes the following
             sentence:

             You are sentenced to:

             Three years state prison for Count 12, cocaine
             possession; 364 days for cannabis possession, to be
             served concurrent with Count 12, and resisting an officer
             without violence, 364 days, Count 17.

             That is to be concurrent with Count 12, but consecutive
             to Count 14.

             That is the Court’s sentence.

             I’m also imposing, as a condition of Count 12, that you
             serve one year of probation.

      This appeal followed. Wiggins argues the trial court committed error in

considering his failure to accept responsibility or admit his involvement in the

crimes when fashioning his sentence. While the trial court took into consideration

several factors and circumstances in determining the appropriate sentence, it is

evident that one of those factors was Wiggins’ statement that he was not involved

in the underlying criminal activity: 4

4  The probation officer interviewed Wiggins as part of the presentence
investigation, at which time Wiggins was given an opportunity to make a
statement. The PSI indicated Wiggins provided the probation officer with the
following information:

      Defendant’s Statement: The defendant was interviewed on October
      16, 2013 at the MetroWest Jail. The defendant stated that he is not

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             In addition, the Court considers, in reading the PSI, the
             false statement that you made to the officer regarding
             your employment situation.

             In checking with your father, who you said you were
             working with, your father disowned – disavowed any
             participation in employment and specifically said that he
             was on disability and did not work.

             In addition, the statement you made to the probation
             officer is that you weren’t involved in this at all, and the
             Court takes that into consideration as well.

      As a general rule, a defendant’s post-trial, presentence protestation of

innocence or continued denial of involvement in a crime for which he has been

convicted, like the refusal to accept responsibility or admit guilt, is not a factor the

trial court may properly consider in fashioning an appropriate sentence. Green v.

State, 84 So. 3d 1169, 1171 (Fla. 3d DCA 2012); Mentor v. State, 44 So. 3d 195

(Fla. 3d DCA 2010); Johnson v. State, 948 So. 2d 1014 (Fla. 3d DCA 2007); Soto

v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004); A.S. v. State, 667 So. 2d 994 (Fla.

3d DCA 1996); Robinson v. State, 108 So. 3d 1150 (Fla. 5th DCA 2013);

Whitmore v. State, 27 So. 3d 168 (Fla. 4th DCA 2010); Hannum v. State, 13 So.

3d 132 (Fla. 2d DCA 2009); Bracero v. State, 10 So. 3d 664 (Fla. 2d DCA 2009).

Reliance on a constitutionally impermissible factor in imposing sentence violates a

defendant’s right to due process. Green, 84 So. 3d at 1171-72; Gage v. State, 147

      guilty of the offenses found guilty of. The defendant further stated
      that he was at the wrong place at the right time.


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So. 3d 1020 (Fla. 2d DCA 2014); Josey v. State, 145 So. 3d 200 (Fla. 5th DCA

2014); Nawaz v. State, 28 So. 3d 122 (Fla. 1st DCA 2010); Ritter v. State, 885 So.

2d 413 (Fla. 1st DCA 2004).

      The State argues there was no error because, when viewed in their totality,

the trial court’s statements reflect that it was referring to Wiggins’ false statement

to the probation officer that he was working with his father. We do not agree.

Rather, the record reflects that the trial court took into account Wiggins’ statement

in the PSI that he was not guilty of the offenses and that he was simply in the

wrong place at the wrong time; in essence, that Wiggins continued to maintain his

innocence even in the face of the jury’s verdicts. Given this record, the State had

the burden of establishing that this factor “played no part in the sentence imposed”

by the trial court. See Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986);

Doty v. State, 884 So. 2d 547 (Fla. 4th DCA 2004). The State has failed to meet

this burden.

      While there is little doubt that the trial court was thoughtful and articulate in

expressing its reasons for the sentences imposed, and although this was but one of

many factors expressly considered by the trial court, we are nevertheless

compelled to reverse and remand for a new sentencing proceeding before a

different judge.5 Green, 84 So. 3d at 1171; Johnson, 948 So. 2d at 1017; Soto, 874

So. 2d at 1217; A.S., 667 So. 2d at 996.



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      Judgments of conviction affirmed. Sentences vacated and remanded for a

new sentencing proceeding before a different judge.




5 We express no opinion on the propriety of the actual sentence imposed nor do we,
by our decision, preclude the imposition of this, or any other lawful, sentence on
remand.

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