An issue which frequently arises at a criminal sentencing hearing is whether or not the defendant has shown "remorse." It has been our experience that most individuals charged with an offense are, in fact, remorseful. If a person elects to require the State to prove guilt beyond a reasonable doubt at a trial, however, the State often argues the defendant has failed to exhibit the appropriate level of remorse. It then uses the defendant's exercise of the constitutional right to trial as a way to impose a greater sentence if the defendant is convicted.
In Dinkines v. State, ___ So.3d ___, 38 FLW D2050 (Fla. 4th DCA September 25, 2013), the Court reversed the defendant's prison sentence because the trial court improperly considered lack of remorse as an aggravating sentencing factor. In doing so, the court specifically held, "...[T]he trial court clearly took Dinkines' perceived lack of sincere remorse into consideration. This constitutes reversible error." The appellate court noted that remorse can be a consideration in determining whether to mitigate (or lessen) an individual's sentence under the state sentencing guidelines. It does not have the authority to use lack of remorse to enhance a sentence because such consideration would violate the person's constitutional right to due process.
The appellate court also held that the trial court committed error when it considered other alleged crimes for which the defendant was acquitted, concluding, "[I]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence." It should be noted that this was a state criminal proceeding. An entirely different result could have been reached had this been a criminal prosecution in federal court.