Florida Supreme Court makes it risky for a defendant to tell a judge ‘I’m innocent’

florida supremes
florida supremes
Photo Illustration: Alex Fine

By Noreen Marcus,

The Florida Supreme Court is sending this message to criminal defendants: If you think you were wrongly convicted, keep it to yourself.

Ignoring long-standing law, the justices decided that when defendants dare to dispute their guilt instead of owning the crime, state trial judges may pile on extra prison time.

The court ruled last Thursday in the case of Alvin Davis, a 43-year-old black man with a lengthy rap sheet that includes convictions for attempted murder, robbery and aggravated battery with a deadly weapon.

After a jury found him guilty of a new charge, firearm possession, Davis told the judge he did not commit the crime.

Alvin Davis

“You still fail to take any responsibility for your actions,” Tallahassee Circuit Judge Robert Wheeler replied. He slapped Davis with the maximum possible prison sentence, 15 years.

On Thursday the high court voted 5-2 to uphold Davis’s sentence. The opinion settles a conflict among the state’s district courts of appeal with one rule for all:  A judge may consider for sentencing purposes “the defendant’s freely offered statements, including those indicating a failure to accept responsibility.”


With that, the justices normalized a penalty for defendants who proclaim their innocence. They’re entitled to address the court before sentencing, a procedure called allocution.

From now on, any sentence a judge increases to retaliate for a defendant’s defiant attitude is likely to hold up on appeal.

“I don’t think there will be a whole lot of allocutions anymore,” said Miami attorney Jude Faccidomo, president of the Florida Association of Criminal Defense Lawyers.

“This is just an incremental step toward giving the trial judge carte blanche on sentencing.”

At the same time, defendants and their lawyers must resolve what he called an “impossible” dilemma.

“This opinion makes it very clear that unless defendants throw themselves on the mercy of the court at sentencing, they’re better off keeping their mouths shut,” said Faccidomo, a criminal defense lawyer for 17 years. “We always say, ‘Don’t talk yourself into a higher sentence.’ ”


Florida Supreme Court Justices Ricky Polston, left, and Jorge Labarga

He said defendants who go to trial because they want to prove their innocence, but are convicted, will be pressured to repent insincerely—basically, perjure themselves to sway the judge and win a lighter sentence. Faccidomo predicted more plea bargains as a result of Thursday’s ruling.

The court apparently shrugged off potential problems, finding that since “acceptance of responsibility is a permissible sentencing consideration to reduce a sentence, then it is simply a proper sentencing consideration, regardless of its purpose,” Chief Justice Charles Canady wrote for the majority.

“Showing remorse is admitting you did something wrong—an admission of guilt. And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt,” Polston wrote.

Justice Ricky Polston, who usually votes with the court’s conservatives, was one of two dissenters. This time he joined Justice Jorge Labarga, the only moderate.

 “Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination,” he wrote. Polston and Labarga concluded that the trial judge trampled Davis’s rights.


For context, Labarga brought up Florida’s 30 Death Row exonerations, “the most of any state in our nation.”

“A defendant’s adherence to a claim of innocence is not always borne of a stubborn refusal to admit the truth,” his dissent says. “Sometimes, people convicted by juries are actually innocent.”

In April 2019 the First District Court of Appeal voted 8-5 to affirm Davis’s sentence. The dissenters expressed some of the same concerns as Polston and Labarga, along with practical considerations.

“Overturning thirty years of precedent … a bare majority of this court enfeebles what for decades has been an easily administered bright-line sentencing rule for Florida judges: Do not punish — or appear to punish — a defendant who maintains his innocence for a perceived lack of remorse or the failure to take responsibility or accept guilt for the crime proven,” Judge Scott Makar wrote.

“Resentencing is required if a trial judge’s comments can reasonably appear to suggest that a criminal sentence was based, even in part, on these impermissible factors,” he wrote. “This prudent, efficient and battle-tested rule has proven its mettle, yet it is discarded today for no good reason.”

Faccidomo said Davis’s lawyers could try to convince the U.S. Supreme Court to examine the Florida decision and reverse it on constitutional grounds. “This is a problematic opinion, so it needs to be taken to the next level of review,” he said.

But whether an appeal will be mounted is unclear. Leon County Public Defender Jessica Yeary, whose office represents Davis, did not respond to an email and a phone call from Florida Bulldog seeking comment.

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Latest comments

  • These ‘conservative’ judges are really Maoists. It was Mao who established the policy: “Leniency to those who confess, severity to those who resist.” Merely suggesting that an innocent person might be arrested and charged implies hostility to the state.


  • If you are guilty beyond the shadow of doubt, I.E. Caught with your hand in the cookie jar. Video proof, Photo’s. And you still plead NOT GUILTY, Shame on you, take your lumps and own up to your actions. That is what is wrong today with people. Nobody wants to take responsibility for their actions. They deserve stiffer penalties. Actually , many of these people should be locked up already, Bleeding heart liberals allowing criminals out early to commit more crimes. You read about it all the time. DO THE CRIME AND DO THE TIME

  • Truly horrifying!

  • Disappointing. The parole system in PA is the same way. If you do your time but don’t express remorse – even if you have maintained your innocence all along – you don’t get out early. In other words, they reward having an inmate lie and feign remorse for a crime for which they were wrongly convicted. The justice system in this country is so broken, it’s never coming back. Besides, there’s no money in the come back.

  • Paul Tallberg you’re extremely short sighted and that dumbass mentality is exactly why our prison system has one of the highest recidivism rates.

    More prisoners means more of our fucking tax dollars being wasted on incarceration instead of proper rehabilitation and a better overall society. Go fuck off to North Korea if you want to live in some authoritarian shithole that has black and white stances on jail.

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