               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT


JONATHAN WILLIAMS,                           )
                                             )
             Appellant,                      )
                                             )
v.                                           )   Case No. 2D12-6172
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 22, 2015.

Appeal from the Circuit Court for
Hillsborough County; Chet A. Tharpe,
Judge.

Tanya M. Dugree of the Law Office of
Tanya M. Dugree, P.A., Tampa, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa, for
Appellee.



LaROSE, Judge.

             Jonathan Williams appeals his judgments and sentences for sexual

battery with a deadly weapon, as charged, and robbery with a weapon, a lesser

included offense of robbery with a firearm. The trial court sentenced Mr. Williams to life
in prison on the sexual battery charge, followed by thirty years in prison for the robbery.

We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A). The trial court imposed the

consecutive sentences on the impermissible basis that Mr. Williams failed to show

remorse and advanced an incredible defense. We affirm the judgments without further

discussion but reverse for resentencing before a new judge.1

              Mr. Williams' criminal punishment code scoresheet called for a minimum

allowable prison sentence of 174.9 months (14.575 years) up to a maximum prison

sentence of life. In rejecting Mr. Williams' request for the minimum allowable prison

sentence, the trial court expressly noted the overwhelming evidence against Mr.

Williams and his implausible defense. The trial court stated, "[T]hen you stand before

this court and say in the face of the evidence which is overwhelming that you're not

guilty, you have absolutely no remorse whatsoever. [ ] And that is more of an impact on

this court's reasoning for the sentence that I'm about to impose than any other reason."

              When a sentencing court expressly considers the improper factors of a

defendant's assertions of innocence and refusal to admit guilt, the truthfulness of his

testimony, or the failure to show remorse, fundamental error and a denial of due

process occur. See Gage v. State, 147 So. 3d 1020, 1022 (Fla. 2d DCA 2014)

(reiterating that trial court's reliance on impermissible sentencing factors in deciding to

impose statutory maximum sentence for battery and sexual battery denied defendant

due process and was fundamental error; impermissible factors include lack of remorse,




              1
               Mr. Williams also contends that fundamental error requires a new trial.
He argues that the trial court failed to give a special circumstantial evidence jury
instruction and that the State suggested an impermissible burden-shifting argument.
We find merit to neither issue and discuss them no further.
                                            -2-
assertions of innocence, failure to accept responsibility, and alleged untruthfulness at

trial); Johnson v. State, 120 So. 3d 629, 631-32 (Fla. 2d DCA 2013) (finding trial

counsel ineffective for failing to object to trial court's improper consideration at

sentencing of defendant's claims of innocence, his refusal to admit guilt, and the

truthfulness of his testimony; remanding for new sentencing hearing before a different

judge); Diaz v. State, 106 So. 3d 515, 516 (Fla. 2d DCA 2013) (holding that trial court

was not permitted to consider truthfulness of defendant's guilt phase testimony as

sentencing factor); Smith v. State, 62 So. 3d 698, 699-700 (Fla. 2d DCA 2011) (express

consideration of such improper factors in sentencing denies due process and

constitutes fundamental error requiring reversal and resentencing before a different

judge); Brown v. State, 27 So. 3d 181, 182-83 (Fla. 2d DCA 2010) (reversing sentences

for sentencing before a different judge when original judge expressly relied on lack of

remorse, thus violating defendant's due process rights); Hannum v. State, 13 So. 3d

132, 135-36 (Fla. 2d DCA 2009) (finding fundamental error where trial court expressly

considered defendant's assertions of innocence and truthfulness of his trial testimony);

Bracero v. State, 10 So. 3d 664, 665-66 (Fla. 2d DCA 2009) (finding violation of due

process when trial court used protestation of innocence against defendant; due process

guarantees right to maintain innocence even when faced with overwhelming evidence of

guilt).




                                             -3-
              The record reflects that the trial court relied on improper factors in

sentencing Mr. Williams. We reverse and remand for resentencing before a different

judge. See Smith, 62 So. 3d at 700.2

              Judgments affirmed, sentences reversed, and case remanded with

directions.



CASANUEVA and SALARIO, JJ., Concur.




              2
                As this court stated in Diaz, 106 So. 2d at 516, while there is no protected
right to commit perjury and a trial court can consider a wide range of information at
sentencing, such improper factors as assertions of innocence and truthfulness cannot be
considered. See also R.M.T. v. State, 157 So. 3d 441, 442 (Fla. 2d DCA 2015).
                                            -4-
