                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

LISA MARIE MACAN,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5496

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed December 1, 2015.

An appeal from the Circuit Court for Santa Rosa County.
Marci L. Goodman, Judge.

Nancy A. Daniels, Public Defender, and Zachary F. Lawton, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal
Appeals, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Lisa Macan, appeals her judgment and sentence for neglect of an

elderly person without great bodily harm, possession of a controlled substance, and
petit theft. We affirm her convictions without further comment. However, because

we agree that the trial court fundamentally erred when it considered Macan’s lack of

remorse when imposing the sentence, we vacate the sentence and remand for

resentencing before another judge.

         Ordinarily, a trial court’s imposition of a sentence within the minimum and

maximum limits is a discretionary matter. Nusspickel v. State, 966 So. 2d 441, 444

(Fla. 2d DCA 2007). However, a claim that a court has considered a constitutionally

impermissible factor in imposing a sentence may be reviewed for fundamental

error.1 Nawaz v. State, 28 So. 3d 122, 124-25 (Fla. 1st DCA 2010).

         Macan was convicted for stealing morphine from an elderly hospice patient

in her care while working as a nurse at an assisted living facility. When the victim

did not respond to two doses of morphine administered within a short period of time

and appeared to continue suffering, another nurse discovered that the prescription

appeared to be watered down. After the assisted living facility confirmed that the

morphine had been diluted, Macan provided signed statements to law enforcement

and to her employer admitting that she took the morphine. However, at trial she

maintained her innocence and testified that her written statements were untrue. The

jury returned guilty verdicts on all counts.



1
    Our review is de novo. See Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010).

                                            2
      At sentencing, the court referred at least eight times to Macan’s failure to take

responsibility, show remorse or empathy, or apologize to the family of the victim.

The court cited Macan’s lack of remorse as “what bothers [the court] the most,”

“what has bothered [the court] throughout,” and “the whole problem.” These

statements continued even after defense counsel noted that a defendant who is

maintaining innocence will not show remorse. The court proceeded to impose a

sentence of five years’ probation for neglect of an elderly person, with 364 days in

county jail as a condition of probation, a consecutive term of four years’ probation

for possession of a controlled substance, and time served for the petit theft.

      Macan argues the trial court fundamentally erred when it imposed a sentence

that took into consideration her failure to show remorse. It is a violation of due

process to punish a defendant for maintaining his or her innocence. Jackson v. State,

39 So. 3d 427, 428 (Fla. 1st DCA 2010). Thus, where a defendant protests his or

her innocence throughout trial and at sentencing, it is constitutionally impermissible

for the trial court to consider lack of remorse when imposing the sentence. Williams

v. State, 89 So. 3d 304, 305 (Fla. 1st DCA 2012). Although the mere mention of a

defendant’s “claim of innocence or failure to ‘take responsibility’ during a

sentencing hearing” will not necessarily rise to the level of fundamental error, Hayes

v. State, 150 So. 3d 249, 252 (Fla. 1st DCA 2014), where a “statement made by the

trial court can reasonably be read only as conditioning the sentence, at least in part,

                                          3
upon appellant's claim of innocence,” fundamental error occurs. Jackson, 39 So. 3d

at 428.

      Here, the court did not merely mention in passing Macan’s refusal to take

responsibility for her actions. Hayes, 150 So. 3d at 252. Rather, the court repeatedly

referred to Macan’s lack of remorse throughout the sentencing hearing. Because the

trial court’s comments can be reasonably read as conditioning Macan’s sentence, at

least in part, on her claim of innocence, Jackson, 39 So. 3d at 428, we reverse and

remand for Macan to be resentenced before a different judge. Williams, 89 So. 3d

at 305.

      We also note the State’s concession of error as to an apparent discrepancy

between the oral and written assessments of fees and costs. 2 On remand, the written

assessment must conform to the oral pronouncement. See Brammer v. State, 554

So. 2d 671 (Fla. 2d DCA 1990). Any discretionary assessments must be specifically

identified at resentencing. Mills v. State, 40 Fla. L. Weekly D2165 (Fla. 1st DCA

June 17, 2015), reh'g denied (Sept. 24, 2015).

      Accordingly, we AFFIRM Macan’s convictions, VACATE her sentence, and

REMAND for resentencing before a different judge.


BENTON, ROWE, and MARSTILLER, JJ., CONCUR.


2
  Appellant preserved this issue through a timely motion to correct sentencing error
filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
                                          4
