       Third District Court of Appeal
                                State of Florida

                            Opinion filed June 20, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D18-278
                          Lower Tribunal No. 13-29726
                              ________________

                                Barbara Stone,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.



      An appeal from the Circuit Court for Miami-Dade County, Tim Bailey,
Judge.

      Jacob M. Noble (Palm Beach Gardens), for appellant.

     Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.


Before SUAREZ, EMAS, and LUCK, JJ.

      SUAREZ, J.
      Barbara Stone appeals from a thirty-month state prison sentence imposed on

violation of probation. We reverse and remand for a new sentencing hearing.
      In 2014, Stone entered into a plea agreement to the charge of interference

with custody, a third degree, non-forcible felony. She scored 22 sentencing points.

The trial court found her guilty, withheld adjudication and placed her on three

years of reporting probation with special conditions. The State subsequently filed

several affidavits alleging Stone violated the terms of her probation. At the 2018

hearing on violation of probation, Stone admitted to the violation allegations and

agreed to plead to the court. At that hearing, evidence was presented that Stone

absconded from probation, committed violence against a police officer, and

repeatedly violated probation by purposefully and maliciously contacting those

persons she was ordered not to contact, including the original trial court judge.

The trial court revoked Stone’s probation and adjudicated her guilty of the

underlying non-forcible third degree felony, and found her statements and behavior

at the sentencing hearing indicated a lack of remorse that caused the court genuine

concern for the safety of the community if non-state sanctions were once again

imposed. The trial court sentenced Stone to thirty months in state prison with credit

for time served.

      Stone filed a timely motion in the trial court to correct an illegal sentence,

which the trial court granted in part as to additional credit for time served. The

trial court did not alter the sentence. On appeal, Stone argues that the trial court’s

sentence was an illegal upward departure based on a scoresheet that reflected only



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22 total sentencing points. Further, Stone claims that the trial court based this

upward departure sentence solely on the basis of Stone’s apparent lack of remorse.

      Because the trial court impermissibly relied on Stone’s apparent lack of

remorse at sentencing, we reverse and remand for a new sentencing hearing before

a different judge. See, e.g., Dinkines v. State, 122 So. 3d 477, 480 (Fla. 4th DCA

2013) (finding reversible error in trial court’s consideration of defendant's

perceived lack of meaningful remorse in imposing state prison sentence); Green v.

State, 84 So. 3d 1169, 1171 (Fla. 3d DCA 2012) (and cases cited therein, holding

lack of remorse, the failure to accept responsibility, or the exercise of one's right to

remain silent at sentencing may not be considered by the trial court in fashioning

the appropriate sentence). As such, we decline to reach the remaining issue on

appeal.

      Reversed, and remanded with directions.




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