       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                            ANTHONY WARD,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-4483

                           [November 19, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 502011CF012393BMB.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   Anthony Ward testified at a jury trial where he was convicted of several
crimes. At his sentencing, the trial judge justified the sentence by stating,
in part, “I did not find your testimony credible.”

   It is fundamental error for a sentencing judge to take into consideration
a defendant’s truthfulness while testifying. See Josephs v. State, 86 So.
3d 1270, 1272 (Fla. 4th DCA 2012); Walden v. State, 123 So. 3d 1164,
1167 (Fla. 4th DCA 2013); Bratcher v. State, 743 So. 2d 112, 114 (Fla. 5th
DCA 1999). The Supreme Court explained the rationale for this rule in
City of Daytona Beach v. Del Percio:

      Conflicting evidence inheres in most trials, and to allow
      imposition of a harsher sentence merely because the trial
      judge believes the evidence supporting his finding of guilt,
      would create a catch-22—the defendant may not be punished
      for his exercise of the right to trial but may be punished for
      his lack of candor during the trial.
476 So. 2d 197, 205 (Fla. 1985).

   We have considered the other point raised on appeal and find no
reversible error.

   This case is affirmed in part, reversed in part, and remanded for
resentencing before a judge other than the original sentencing judge. See
Josephs, 86 So. 3d at 1272.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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