DUI Appeal of the Day - Sentencing, Culpability, Lesser Includeds

In Colon v. State of Florida, ---So.3d ----, 2011 WL 248549 (Fla.App. 5 Dist.) the defendant is convicted of multiple counts of leaving the scene of an accident involving death, vehicular homicide, and failure to report an accident. He maintained his innocence during trial and at sentencing. Based in part on his claim of innocence - that he wasn't the driver - the court sentenced him to the maximum of 30 years in prison.

On appeal, the court found that the convictions for leaving the scene and failing to report violated double jeopardy; the appellate court finding that they constituted the same offense (the failing to report being a lesser-included offense of leaving the scene).

Also, the court found that the trial court's reliance on the defendant's claim of innocence as a basis for the sentence was also constitutionally impermissible:

A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence, but “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).


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