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Wednesday, November 30, 2016

THIRD CLIPS GLICK WITHOUT REMORSE

Prosecutors cannot argue lack of remorse of  at sentencing because Judges are specifically prohibited from considering lack of remorse when passing sentence.

Knowing this, the prosecution in Lawton v. State, 3D15-1520 improperly argued the defendant's lack of remorse when seeking the court to impose a severe sentence:

THE STATE: [I]n light of the fact that Mr. Lawton has, still to this day, not expressed any remorse for what he's done or any responsibility for something that he has now been adjudicated guilty by 6 of his peers and in light of the victim's wishes, the State is requesting that your Honor sentence him to a minimum of five years in state prison . . . . 

(We will leave for another day the Dade's Sao's complete abandonment of their role and duty to seek justice and recommend a fair sentence. Victim's by the very nature of the fact they have been victimized are not in a position to request a just sentence. They usually seek vengeance, which is understandable, but not legal nor even biblical. But lest there be any doibt the Dade SAO has completely abandoned their role in seeking justice at sentencing, one need only re-read the words of the ASA who- at the urging of the victim, sought a five year sentence.). 

In Lawton, the 3rd found that Judge Glick did consider that argument and the defendant's lack of remorse in sentencing Lawton. The 3rd vacated the sentence and remanded for a new sentencing procedure before a different judge. Even the best judges have a bad day, and Judge Glick erred.

But what bothers us is that prosecutors continually argue lack of remorse at sentencing when the law is clear and they should know better. The court in Lawton wrote:
It is well established that “[w]hile a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004).

It's apparently "well established" with everyone except the Dade SAO. What concerns us is that the new year brings new judges. And what with afternoon nail and spa appointments, tea and tee times, not to mention the odd origami class before dinner, judges just don't have the time to read case law. And new judges, like veals in a pen, are led through a maze by aggressive and over-confident prosecutors who continually push that "right up until today Judge he continues to show no remorse" argument that must still exist in some State Attorney Handbook under the heading "So Now You've Won a Trial. What's Next?"

So lets all make a new years resolution to keep Lawton and Ritter v. State handy, so that when prosecutors pull out the "no remorse" argument, the defense has a response. Well, at least some you need to make that resolution. We don't, for reasons that should be obvious.

See You In Court.





9 comments:

Anonymous said...

I have a question RUMPOLE ...

Why is SIR KENNY wearing brown suede shoes with a very dark black suit?

Isn't that contrary to the Rule against Perpetuities or is it justified because Art Basel is in town?

Anonymous said...

Fla. constitutional and statutory law allow victims to have say at sentencing. Doesn't mean a victim could argue lack of remorse as a reason for sentence; but could argue legal reason for legal sentence.

Glick's no veal. Been around long enough to know better.

I wonder why an appellate court remands for resentencing before a different judge. I can see it in a case involving vindictive sentencing. I don't get it (though I don't mind it) in a case like this. Is the judge presumed unable to disregard lack of remorse?

Anonymous said...

Could there be a less impressive list of 3rd DCA candidates? #shallowpool.

Real Fake Former Judge said...

The moronic kenny posts have now reached shumie status. Annoying. Bothersome. Ponderous to read. Can you please block those, as an early Xmas gift? Thanks a lot.

Meanwhile I am the very best of Survivor Pool players. Actually. THE BEST. Don't be surprised if there is an upset tonight. Not picking the game for this pool. Jus sayin....

Anonymous said...

Wasn't their a recent case that permitted the prosecution to argue lack of remorse after the defendant had entered a guilty plea?

Anonymous said...

Ugggg. We LOVE the KENNY posts.

Anonymous said...

Please publish the 3rd DCA judge list Rumpole

Anonymous said...

If SAO can't argue lack of remorse or judges cannot take it into account when sentencing,then why are PDs & Private Defense attorneys allowed to bring in mitigating facts to get lower sentences? Is it time to change the law?

Anonymous said...

10:28 the State can't argue lack of remorse, unless put at issue by the defense, because it's implicitly a comment on the 5th amendment right to silence and the 6th amendment right to go to trial. The defense can argue whatever mitigation it chooses because of this thing called due process.

And no, it's not time to change the law. Judges can't consider constitutionally impermissible sentencing factors. Deal with it.