Opinion

KERN R. DAVIS v. STATE OF FLORIDA

  • 227 So. 3d 137
  • 2017 Fla. App. LEXIS 12922
  • 2017 WL 3888043
Court
District Court of Appeal of Florida
Filed
Sep 6, 2017
Status
Published
Author
Gross
On the bench
Conner, Ciklin, Gross
Cited by
6 cases
Authority
More cited than 13.5%

reversing and remanding where the 5 successor judge “intentionally decided it was not going to evaluate the same evidence submitted at trial and the initial sentencing hearing, together with the new evidence”

How later courts described this case

  • reversing and remanding where the 5 successor judge “intentionally decided it was not going to evaluate the same evidence submitted at trial and the initial sentencing hearing, together with the new evidence”
  • “[W]hen a sentence has been reversed as illegal and the case is remanded for resentencing, a defendant is entitled to the full panoply of due process considerations on resentencing.”

Written by the judges who cited it.

The opinion

Gross, J.,

dissenting.

The majority has scoured the trial judge’s words, like a medieval monk pouring over sacred text, looking for nuances that would support reversal.

Here, the legal basis for reversal is that the judge violated the constitution by failing to exercise “independent judgment.” A failure to exercise independent judgment is a flimsy notion upon which to erect a reversal. If law involves the drawing of *142 lines, who can say when independent judgment begins and ends?

The majority is reversing a sentence that is entirely appropriate for the crime appellant committed, given his criminal history. I agree with the state that the trial judge here conducted a de novo sentencing hearing, for which he was clearly prepared. The judge exercised his discretion to impose the same sentence as the judge who presided over the 1994 trial.

The sad irony of the law is that a judge can shred the Constitution in sentencing so long as he does not utter words that give him away. Those , are cases that courts typically affirm. See, e.g., Charles v. State, 204 So.3d 63, 71-74 (Fla. 4th DCA 2016) (Gross, J., dissenting).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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