Franklin Lawton ("Lawton") appeals from his sentence. On appeal, Lawton argues that the trial court impermissibly considered his lack of remorse when imposing sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to section 921.0026(2)(d), Florida Statutes (2015), Lawton filed a motion for a downward departure based on the grounds that he required specialized treatment for his physical disabilities and was amenable to treatment. Neither in his motion nor at the hearing did Lawton raise rehabilitation or remorse as reasons for mitigation. At the hearing on the downward departure motion, the State argued that Lawton did not require specialized treatment that could not be handled in prison. The State further argued that:
After hearing arguments, the trial court issued its ruling and stated:
The trial court sentenced Lawton to 8 years in prison.
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). Consideration of remorse, however, is appropriate where a defendant injects rehabilitation into the case as remorse is part of rehabilitation. See Rankin v. State, 174 So.3d 1092, 1097 (Fla. 4th DCA 2015).
Here, the record contains no evidence that Lawton filed a motion for a downward departure based on rehabilitation or otherwise injected remorse into his argument for mitigation. See Rankin, 174 So.3d at 1098 (finding that trial court properly considered defendant's lack of remorse as it went to the heart of the statutory basis for the downward departure, i.e., that "[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse"). A review of the record shows that the only statutory ground Lawton pursued was based on "physical disability." § 921.0026(2)(d), Fla. Stat. Indeed, the State — not Lawton — raised remorse as a ground for denying the motion. The trial court's consideration of remorse, therefore, constituted an impermissible factor in imposing its sentence.
Because we find that the trial court's consideration of Lawton's lack of remorse constituted fundamental error, we reverse and vacate the sentence. See Davis v. State, 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) (finding that a "trial court's consideration of a defendant's lack of remorse in imposing its sentence is fundamental error"). We further direct that Lawton be resentenced before a different judge.
Reversed and remanded.