       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           BRIAN M. RANKIN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D14-166

                           [September 16, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 13-
002195CF10A.

  Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

GROSS, J.

   Central to this appeal is whether the trial judge impermissibly
considered appellant Brian Rankin’s lack of “remorse” and failure to accept
responsibility when imposing his sentence. At sentencing, Rankin sought
a downward departure sentence, emphasizing his rehabilitation and
ability to maintain a productive future lifestyle. Since Rankin injected the
issue of his rehabilitation into the case, the trial court permissibly could
consider all factors relevant to his rehabilitation, including his remorse or
lack of it. Accordingly, the court’s comments did not constitute error.
                          Factual Background
   On March 14, 2013, the State charged Rankin with two felonies:
burglary of an occupied dwelling and possession of burglary tools. The
core facts were that Rankin went to a neighbor’s home in the early evening
and pounded on windows and doors, asking to be let inside. When the
neighbors failed to oblige, Rankin tried to pry a back window open with a
pair of trimmers. The neighbors called the police and Rankin was arrested.
Rankin took the case to trial and lost, resulting in a conviction of
possession of burglary tools, a third-degree felony, and a conviction of the
lesser included offense of misdemeanor criminal trespass. Because the
State expressed its intention to have Rankin sentenced as an habitual
felony offender, the trial court ordered a pre-sentence investigation (“PSI”)
and set sentencing for a later date.
    At the sentencing hearing, the State called witnesses to establish
Rankin’s three prior felony convictions. In addition, the State presented
testimony from the victims about how Rankin’s actions changed their lives
for the worse.
   For the defense, Rankin called his mother, who testified that Rankin is
not a “hardened criminal” but rather “someone that makes poor choices
and drinks too much.” The mother further explained that Rankin is “very
helpful” in her Key Largo neighborhood, that many wished to see him
return, and that he had a job waiting for him should he avoid prison.
Rankin then testified that he “fe[lt] bad about the way people fe[lt] about”
him “[b]ecause [he] fe[lt] responsible.” Rankin explained that he is a “good
person” but he had been drinking the day of the incident. As a result,
Rankin begged the court “for mercy” and hoped the court would “see that
[he is] a good person,” assuring that he would “do good,” “stay out of
trouble[,] and work.”
    After both sides rested, defense counsel informed the court that
Rankin’s scoresheet for the possession of burglary tools charge reflected
44.4 points, placing his lowest permissible sentence at 12.3 months
incarceration. However, the scoresheet incorrectly assessed an additional
seven points, meaning Rankin was actually eligible for a non-state prison
sentence. Defense counsel argued against habitualization and requested
a downward departure sentence to time served1 or supervision. Defense
counsel did not articulate a specific statutory ground for departure. The
State countered that there was “no legal reason to depart from the
guidelines” and that Rankin should be sentenced as an habitual felony
offender to ten years imprisonment.
   After considering the arguments, the trial court sentenced Rankin as
an habitual felony offender to four years imprisonment on the possession
of burglary tools conviction. In ruling, the trial court made the following
remarks:
      Okay. The Court has reviewed pre-sentence investigation,
      reviewed this file and I find that the State has provided proper

1Rankin   had spent 79 days in the county jail.

                                       -2-
      notice of [Rankin’s] priors to seek a Habitual Offender status
      and will sentence as a Habitual Offender.
      ...
      He has not appealed any of these matters successfully. It is
      noted that the officer who interviewed Mr. Rankin at the
      Conte, C-O-N-T-E facility noted that he had no remorse.
      He did not show any remorse for his actions. And as it is
      stated today, he takes no responsibility. And he said that he
      did not do anything.
      Specifically, he said, quote, unquote, I did not hurt anyone.
      And he told the person I did not break into the house. And I
      did not hurt anyone.
   The trial court’s consideration of appellant’s lack of remorse
  did not amount to fundamental error as it occurred during the
     court’s consideration of whether to impose a downward
                         departure sentence

   The primary issue on appeal concerns whether the trial court’s
statement that Rankin “did not show any remorse” and took no
responsibility for his actions constitutes fundamental error, warranting
resentencing.

                                 Preservation

    Preliminarily, the State is incorrect that Rankin was required to either
object at the sentencing hearing or file a 3.800(b) motion to raise this issue
on appeal. A Rule 3.800(b)(2) motion to correct sentence subsequent to
sentencing is “not the proper mechanism for preserving for appeal the
issue of whether the court improperly considered certain factors in
imposing sentence.” Hannum v. State, 13 So. 3d 132, 135 (Fla. 2d DCA
2009) (footnote omitted). Rather, courts recognize the issue as one of
fundamental error. Id. “Generally, the trial court’s imposition of a
sentence that is within the minimum and maximum limits set by the
legislature ‘is a matter for the trial [c]ourt in the exercise of its discretion,
which cannot be inquired into upon the appellate level.’” Nusspickel v.
State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007) (quoting Shellman v. State,
222 So. 2d 789, 790 (Fla. 2d DCA 1969)). “However, an exception exists
when the trial court considers constitutionally impermissible factors in
imposing a sentence.” Norvil v. State, 16 So. 3d 3, 6 (Fla. 4th DCA 2014)
(citing Peters v. State, 128 So. 3d 832, 844 (Fla. 4th DCA 2013)). Thus, we
view the case through this fundamental error prism.

                                      -3-
                                  Analysis
   While a trial court has “wide discretion regarding the factors it may
consider when imposing a sentence,” Bracero v. State, 10 So. 3d 664, 665
(Fla. 2d DCA 2009), reliance upon “‘impermissible factors violates [a]
defendant’s due process rights.’” Brown v. State, 27 So. 3d 181, 183 (Fla.
2d DCA 2010) (quoting Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA
2004)). One such “impermissible factor” arises where the sentencing court
“consider[s] the fact that a defendant continues to maintain his innocence
and is unwilling to admit guilt.” Ritter, 885 So. 2d at 414; Soto v. State,
874 So. 2d 1215, 1217 (Fla. 3d DCA 2004) (“[C]ontinued protestations of
innocence, and unwillingness to admit guilt should not be factors taken
into consideration by a court in sentencing a defendant.”). As the Florida
Supreme Court has explained:

      A defendant has the right to maintain his or her innocence
      and have a trial by jury. Art. I, § 22, Fla. Const. The
      protection provided by the fifth amendment to the United
      States Constitution guarantees an accused the right against
      self-incrimination. The fact that a defendant has pled not
      guilty cannot be used against him or her during any stage of
      the proceedings because due process guarantees an
      individual the right to maintain innocence even when faced
      with evidence of overwhelming guilt. A trial court violates due
      process by using a protestation of innocence against a
      defendant. This applies to the penalty phase as well as to the
      guilt phase under article I, section 9 of the Florida
      Constitution.
Holton v. State, 573 So. 2d 284, 292 (Fla. 1990).
    Over time, case law has expanded the rule in Holton and applied it in
cases which “indicate that it is ‘generally improper for the sentencing court
to consider the defendant’s lack of remorse.’” Peters v. State, 128 So. 3d
832, 847 (Fla. 4th DCA 2013) (quoting Robinson v. State, 108 So. 3d 1150,
1151 (Fla. 5th DCA 2013)). The idea is that while “remorse and an
admission of guilt may be grounds for mitigation of sentence, the opposite
is not true.” Brown, 27 So. 3d at 183 (quoting Ritter, 885 So. 2d at 414);
Gilchrist v. State, 938 So. 2d 654, 657-58 (Fla. 4th DCA 2006) (“When a
court predicates the length of a sentence on the defendant’s failure to show
any inclination toward repentance, the court violates the defendant’s right
not to be required to incriminate himself.”).
   Consideration of remorse is, however, appropriate if it occurs during a
court’s consideration of whether or not to mitigate a sentence. See Shelton


                                    -4-
v. State, 59 So. 3d 248, 250 (Fla. 4th DCA 2011). This is especially true
“where a defendant . . . takes the position at his [ ]sentencing . . . that he
has been rehabilitated” since “[r]emorse is a part of rehabilitation.” Peters,
128 So. 3d at 848. Thus, where a defendant “inject[s] the issue of his
rehabilitation into [his] case,” we have held “the trial court permissibly
could have considered all factors relevant to his rehabilitation and fitness
to rejoin society,” including his remorse or lack of it. Id.
    This is the distinguishing factor between this case and our recent
decision in Davis v. State, 149 So. 3d 1158 (Fla. 4th DCA 2014), upon
which Rankin relies in his reply brief. In Davis, this Court reversed a
defendant’s concurrent sentences for attempted first degree murder with
a firearm when the trial judge made the following remarks:
      I heard the evidence and I heard the jury speak. I also heard
      the recommendation of your lawyer.            I’ve heard the
      recommendation by the state. I am going to give you as much
      of a break as I can. What I didn’t hear was your responsibility.
      What I didn’t hear was an apology to the family of the victims
      and to the victims. What I didn’t hear was you taking
      ownership of your actions and that bothers me.
Id. at 1159 (emphasis in original). Under the circumstances, we found the
“trial court’s consideration of [the defendant’s] lack of remorse and failure
to take ownership of his actions or apologize to the victims’ families
constituted fundamental error.” Id. at 1160. Unlike this case, there was
no indication the Davis defendant moved for a downward departure or
otherwise injected rehabilitation into his argument for mitigation.
    Here, the defendant expressly moved for a downward departure.
“Florida law provides that a trial court must, at a minimum, impose the
lowest permissible sentence on a criminal defendant calculated according
to the Criminal Punishment Code, unless the court finds that the evidence
supports a valid reason for a downward departure.” State v. Owens, 95
So. 3d 1018, 1019 (Fla. 5th DCA 2012) (citing § 921.00265(1), Fla. Stat.
(2010)). “To determine whether a downward departure sentence is
appropriate, the trial court follows a two-step process.” State v. Subido,
925 So. 2d 1052, 1057 (Fla. 5th DCA 2006) (citing State v. Mann, 866 So.
2d 179, 181 (Fla. 5th DCA 2004); Staffney v. State, 826 So. 2d 509, 511
(Fla. 4th DCA 2002)). “In the first step, the trial court must determine
whether there is a valid legal basis for the departure sentence that is
supported by facts proven by a preponderance of the evidence.” State v.
Knox, 990 So. 2d 665, 667-68 (Fla. 5th DCA 2008) (citing Banks v. State,
732 So. 2d 1065, 1067 (Fla. 1999)). Once the defendant satisfies this
burden, the court must then decide “whether it should depart, i.e., whether


                                     -5-
departure is indeed the best sentencing option for the defendant.” Banks,
732 So. 2d at 1068.
   Reference to the applicable statutes reveals that the only statutory
ground Rankin could have pursued based on his counsel’s argument was
that “[t]he offense was committed in an unsophisticated manner and was
an isolated incident for which the defendant has shown remorse.” §
921.0026(2)(j), Fla. Stat. (2013) (emphasis added). The trial court’s finding
that Rankin lacked remorse went directly to the heart of this statutory
basis for a downward departure. The trial court’s statements, therefore,
do not constitute fundamental error.
 Because appellant was sentenced as an habitual felony offender,
     the incorrect scoresheet does not require a reversal for
                          resentencing
   Rankin’s second issue on appeal is that the trial court erred in denying
his Rule 3.800 motion to correct sentencing error because his scoresheet
incorrectly included seven more points than it should have. The State
concedes the discrepancy but contends any deficiencies in the scoresheet
were harmless since Rankin was sentenced as a habitual felony offender.
This determination took his sentence outside of the Criminal Punishment
Code and made his scoresheet legally irrelevant.
                                   Analysis
   It is true that “‘[a]ll defendants are entitled to be sentenced under a
correctly scored and calculated score sheet.’” Cooper v. State, 902 So. 2d
945, 946 (Fla. 4th DCA 2005) (quoting Fortner v. State, 830 So. 2d 174,
175 (Fla. 2d DCA 2002)); see also State v. Anderson, 905 So. 2d 111, 118
(Fla. 2005) (noting that “it is essential for the trial court to have the benefit
of a properly calculated scoresheet when deciding upon a sentence”). As
we have written:
      [A] score sheet error is not deemed harmless unless the record
      conclusively shows that the trial court would have imposed
      the same sentence had it had the benefit of the corrected score
      sheet.
Cooper, 902 So. 2d at 946 (quoting Fortner, 830 So. 2d at 175). However,
such is the case only where the scoresheet would actually apply.
   “Habitual offender sentencing is . . . separate from both the sentencing
guidelines and sentencing under the Criminal Punishment Code.” State
v. Collins, 985 So. 2d 985, 991 (Fla. 2008); Alexander v. State, 88 So. 3d
417, 419 (Fla. 4th DCA 2012) (“Because the trial court sentenced appellant
as an habitual offender, the Criminal Punishment Code is inapplicable.”).

                                      -6-
Such separation is largely a relic from the time guidelines severely
restricted a trial court’s sentencing discretion. Cf. State v. Kendrick, 596
So. 2d 1153, 1154 (Fla. 5th DCA 1992) (“[T]he legislature amended the
habitual offender statute to make habitual offender sentencing
independent of the sentencing guidelines.”). Nonetheless, the limitation
remains even today. See § 775.084(4)(h), Fla. Stat. (2013) (“A sentence
imposed under this section is not subject to s. 921.002 [The Criminal
Punishment Code].”).
    Thus, where a defendant is sentenced as an habitual felony offender,
“the guidelines scoresheet is legally irrelevant.” Cooper, 902 So. 2d at
947;2 see also LaFleur v. State, 812 So. 2d 545, 546 (Fla. 4th DCA 2002)
(finding that because the defendant was sentenced as an habitual
offender, he was not entitled to be resentenced even though his scoresheet
was improperly calculated and the trial court sentenced him at the
miscalculated maximum guideline sentence); Horn v. State, 775 So. 2d
1007, 1007 (Fla. 3d DCA 2001) (finding that “[w]e need not address th[at]
claim [an incorrect calculation in his sentencing guidelines scoresheet]
because defendant was sentenced as a habitual offender and the
guidelines scoresheet is irrelevant”); McGee v. State, 19 So. 3d 1074, 1079
(Fla. 4th DCA 2009) (“[A]ny error in a guidelines scoresheet is harmless
when the defendant is sentenced as a habitual offender.”).
   Here, the trial court sentenced Rankin as an habitual offender,
rendering his scoresheet legally irrelevant. Furthermore, by entering a
sentence well above the 12.3 month minimum prison sentence under the
miscalculated scoresheet, it can be inferred that a downward recalculation
would not affect the trial judge’s sentence.

      Affirmed.

DAMOORGIAN and GERBER, JJ., concur.

                              *         *         *

      Not final until disposition of timely filed motion for rehearing.



2In Cooper, for example, the defendant was sentenced as an habitual felony
offender to 41.712 months incarceration, representing the minimum guidelines
sentence under an incorrectly calculated scoresheet. 902 So. 2d at 947. Though
“the 41.712-month sentence happened to be equal to the minimum guidelines
sentence under the incorrectly calculated score sheet,” we nonetheless affirmed
since “the guidelines scoresheet is legally irrelevant because [the defendant] was
habitualized.” Id.

                                       -7-
