         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5113
                 _____________________________

CARL LEWIS BURNS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  ___________________________

On appeal from the Circuit Court for Washington County.
Peter A. Mallory, Judge.

                          July 11, 2018

KELSEY, J.

     Appellant challenges only his 300-year sentence for ten
counts of sexual battery on his adopted daughter (his wife’s
biological niece) when the girl was fifteen to seventeen years old
and in his familial or custodial care. He was sixty. During pre-
trial investigation, Appellant gave a post-Miranda, sworn,
recorded confession that was admitted into evidence at trial
without objection, in which he claimed he committed the sexual
battery “about ten” times and continued to do it because he
believed the victim began to enjoy it. Thereafter, however,
Appellant entered a plea of not guilty, demanded a jury trial,
attempted to retract his confession during his trial testimony,
and through counsel maintained his innocence at sentencing.

   The trial judge stated at sentencing that the evidence of
Appellant’s guilt was compelling, and then went on to tie
Appellant’s lack of remorse to the sentence imposed, as follows:
“And the Court finds that you have really shown no remorse and
denied that any of this took place. So, the Court is going to
sentence you to 30 years for each of the ten counts, for a total of
300 years, which are to be served consecutively.” Because the
trial judge’s comments leave no doubt that he relied improperly
on Appellant’s claims of innocence, we are constrained to vacate
the sentence and remand for resentencing before another judge.
We also certify a question of great public importance to the
Florida Supreme Court seeking clarification of the legal effect of
a defendant’s confession of guilt before trial, blatantly lying at
trial, and failure to challenge guilt on appeal, in light of
precedent barring sentencing courts from relying on claims of
innocence.

                              Facts

     Appellant admitted in his recorded pre-trial confession, and
at trial, that he was aware that the victim had been sexually
abused previously by two separate men including her biological
father, giving rise to legal proceedings culminating in her
adoption into Appellant’s family. The victim testified that after
Appellant and his wife adopted her, Appellant raped her two or
three times a week for over a year and a half. In addition to the
victim’s testimony, and Appellant’s pre-trial confession, DNA
evidence retrieved from the victim’s body and from her
underwear corroborated Appellant’s guilt. The victim testified
that she was afraid to come forward because she did not want to
be removed from another family or be split up from her younger
brother.

     Appellant’s post-Miranda confession was strikingly detailed.
He admitted to most recently having had sex with the victim the
previous week, and that it had been going on over a year, about
ten times, sporadically. He never used a condom. He “could have”
also groped or grabbed her sexually. When asked why he would
have intercourse with her, he paused, apparently laughed, said “I
gotta see how to say this,” then “[s]he had begin [sic] to enjoy it”
and had told him so. He admitted he did it at night so he
wouldn’t get caught, but denied that thinking it was wrong was a
reason he did it at night. He took an oath swearing the confession

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was true, and acknowledged that he could be arrested for perjury
for making a false statement.

     Appellant’s attempt to retract his confession at trial was
strikingly weak. He said the confession was false and he made
the confession because he was “going to take up for my
young’uns” or “take all the heat for my young’uns.” He did not
explain what that meant. He claimed his DNA got on the victim’s
underwear because he would masturbate on an article of his own
clothing and then put it in a shared laundry basket containing
the victim’s clothes. He made up the number “about ten times” as
to how often he had sex with the victim. He claimed his health
prevented him from having sex, although admitting he had sex
with his wife. He could not explain why his semen was on vaginal
swabs taken from the victim, except to deny that it was there. He
was argumentative with the prosecutor, claiming something
(undefined) said before the recorder was turned on somehow
(undefined) caused him to lie, and that he would lie under oath at
trial “to take up for my children.”

     Appellant did not address the court at sentencing, but his
counsel reiterated that Appellant continued to deny guilt. The
trial court said the following at sentencing (emphasis added):

         Okay. Carl Lewis Burns, you’ve been found guilty
    by a jury of your peers, of engaging in ten counts of an
    act which constitutes sexual battery upon or with a child
    12 years of age or older, but younger than 18 years of
    age, by a person in a familial custodial authority.

         The Court found [sic] that the evidence in this case
    was compelling. And the Court finds that you have
    really shown no remorse and denied that any of
    this took place. So, the Court is going to sentence
    you to 30 years for each of the ten counts, for a
    total of 300 years, which are to be served consecutively.

        And the Court, further, has heard the testimony
    about your disability. And the Court finds that the
    disability did not prevent you from committing this
    crime. But the Court will request that you be sent to a

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    facility where your disability and physical problems can
    be handled, as well as a place that will provide you with
    mental health counseling.

        And you have 30 days to file an appeal of this
    sentence.

     Despite Appellant’s original sworn confession to the crimes of
conviction, we are constrained to reverse his sentence because the
trial court improperly relied on Appellant’s subsequent claim of
innocence.

                 Improper Sentencing Factor

     A trial court cannot base a sentence on the defendant’s
choosing to maintain innocence. Holton v. State, 573 So. 2d 284,
292 (Fla. 1990) (noting that a trial court’s use in sentencing of
defendant’s assertion of innocence violates due process rights
arising under U.S. Const. amend. V and Art. I, § 22, Fla. Const.);
see also Hayes v. State, 150 So. 3d 249, 251 (Fla. 1st DCA 2014).
As a corollary of protecting the right to maintain innocence, a
trial court cannot base a sentence on the defendant’s refusal to
express remorse for the crime of conviction. Macan v. State, 179
So. 3d 551, 553 (Fla. 1st DCA 2015) (holding that references to a
defendant’s failure to take responsibility constitute fundamental
error only “where a ‘statement made by the trial court can
reasonably be read only as conditioning the sentence, at least in
part, upon appellant’s claim of innocence’”) (quoting Jackson v.
State, 39 So. 3d 427, 428 (Fla. 1st DCA 2010)).

     The trial judge’s statement here reflects that he violated the
governing law by relying on Appellant’s failure to express
remorse and refusal to admit guilt in the face of compelling
evidence of guilt. After reciting the jury’s finding of guilt, the
judge immediately said, “And the Court finds that you have
really shown no remorse and denied that any of this took place.
So, the Court is going to sentence you to 30 years for each of the
ten counts, for a total of 300 years, which are to be served
consecutively . . . .” (Emphasis added.) Viewed in context, as it
should be, the judge’s statement could not refer to anything other
than Appellant’s choice to maintain his innocence. The causative

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effect of that improper reliance is clear from the judge’s choice of
words: he said “So,” meaning “therefore” or “because of,”
indicating actual reliance on this improper factor and not
identifying any other factor. We therefore vacate the sentence
and remand for resentencing before another judge. See Jackson,
39 So. 3d at 428 (ordering different judge to re-sentence
defendant on remand); see also Jiles v. State, 18 So. 3d 1216,
1216-17 (Fla. 5th DCA 2009) (same).

                       Certified Question

     Rather than end our analysis with this sentencing
disposition, we certify to the Florida Supreme Court the following
question of great public importance that the facts of this case
create, apparently without on-point precedent. We have resolved
the factual aspects in favor of the disposition already noted, but
we believe the state raises compelling arguments for a different
rule of law on facts such as these.

    MAY A SENTENCING COURT RELY ON A DEFENDANT’S LACK
    OF REMORSE AFTER THE DEFENDANT HAS GIVEN A POST-
    MIRANDA, SWORN CONFESSION TO THE CRIME AND HAS
    OBVIOUSLY LIED UNDER OATH AT TRIAL ABOUT HIS GUILT?

     The state notes that the rule against relying on a defendant’s
assertion of innocence applies only when the defendant has “at all
times” maintained innocence. Hubler v. State, 458 So. 2d 350, 353
(Fla. 1st DCA 1984). The state argues that the rule should not
apply with the same force where the defendant has given a post-
Miranda, sworn statement under penalty of perjury, because
such a confession is directly inconsistent with maintaining
innocence. We would add as potentially relevant considerations
the obviousness with which Appellant lied under oath at trial,
and the fact that Appellant has failed to challenge his conviction
on appeal and therefore no longer maintains his innocence. It
may be that the Hubler reference to maintaining innocence “at all
times” should be ratified as taking a case out of the general rule
when the defendant has made a pre-trial sworn confession. But
see generally Blakely v. Washington, 542 U.S. 296, 303 (2004)
(noting in different context that the only facts deemed “admitted
by the defendant” are those admitted in a guilty plea, stipulated

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to at trial, admitted at sentencing, or contained in judicial
findings to which the defendant assents), cited in Donohue v.
State, 979 So. 2d 1058, 1059 (Fla. 4th DCA 2008).

     Appellant’s lying under oath has distinct significance as an
indicator that he was not truthfully maintaining his innocence at
trial, and that should make a difference. In Lincoln v. State, 978
So. 2d 246 (Fla. 5th DCA), review denied, 987 So. 2d 80 (Fla.
2008), the court noted that a defendant charged with exactly the
same crime charged against Appellant “testified at trial and was
unable to explain incriminating comments he made in recorded
telephone exchanges with the child victim.” 978 So. 2d at 247.
The court held that in light of the defendant’s own incriminating
comments, the trial court properly considered lack of remorse.
Id.; see also St. Val v. State, 958 So. 2d 1146, 1147-48 (Fla. 4th
DCA 2007), review dismissed, 982 So. 2d 682 (Fla. 2008) (holding
lack of remorse can be a proper sentencing consideration, and
distinguishing between application of these rules in capital-case
analysis of aggravating and mitigating factors and their potential
inapplicability in a non-capital case).

     Other reported opinions cast additional doubt on the
propriety of adhering to a prophylactic rule against factoring in a
defendant’s lack of remorse upon sentencing. Former Judge
Altenbernd, dissenting in Johnson v. State, 120 So. 3d 629 (Fla.
2d DCA 2013), raised the issue as demanding the Florida
Supreme Court’s attention. He noted that the trial judge and the
jury had concluded that the defendant lied under oath during the
trial. 120 So. 3d at 634 (Altenbernd, J., dissenting). He concluded
that the Florida Supreme Court should revisit the applicability of
the rule that a trial judge may not comment about lack of
remorse in such a context. Id. He cited to similar concerns
expressed by Judge Kelly in Brown v. State, 27 So. 3d 181, 183-85
(Fla. 2d DCA 2010). Johnson, 120 So. 3d at 634. In her Brown
concurrence, Judge Kelly likewise emphasized the importance of
the defendant’s obvious untruthfulness under oath as a
permissible factor in sentencing. 27 So. 3d at 183-84 (Kelly, J.,
concurring). Obvious lying under oath is a distinct consideration,
reflecting on the defendant’s character and lack of respect for the
rule of law, which are valid sentencing considerations. These
observations, also present here because Appellant’s attempts to

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recant his confession at trial were so blatantly false, merit the
supreme court’s consideration. But see City of Daytona Beach v.
Del Percio, 476 So. 2d 197, 205-06 (Fla. 1985) (rejecting perjury
as a sentencing factor because it can be redressed by prosecution
for perjury itself).

    VACATED; REMANDED; QUESTION CERTIFIED.

ROBERTS and M.K. THOMAS, JJ., concur.
              _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Andy Thomas, Public Defender; and David Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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