IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JOHN PICCININI,

Appellant,

v. Case No. 5D17-2919

LT Case No. 2016-CF-10220

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed June 17, 2022

Appeal from the Circuit Court 

for Orange County,

Theotis Bronson, Senior Judge.

Elizabeth Siano Harris, of Harris Appellate 

Law Office, Mims, for Appellant.

Ashley Moody, Attorney General, 

Tallahassee, and Kristen L. Davenport, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

PER CURIAM.

We review this case upon remand from the Florida Supreme Court for 

reconsideration in light of its decision in Davis v. State, 332 So. 3d 970 (Fla. 
2

2021). In our original opinion, we upheld John Piccinini’s convictions but 

remanded for resentencing after finding that the trial court improperly 

considered his lack of remorse and failure to take responsibility in imposing

the sentence. See Piccinini v. State, 275 So. 3d 210, 211–13 (Fla. 5th DCA 

2019). That decision was quashed1 after the Florida Supreme Court held, 

“when a defendant voluntarily chooses to allocute at a sentencing hearing, 

the sentencing court is permitted to consider the defendant’s freely offered 

statements, including those indicating a failure to accept responsibility.” 

Davis, 332 So. 3d at 978. We now affirm Piccinini’s sentence. 

The circumstances surrounding the sentencing issue were presented

in our original opinion. See Piccinini, 275 So. 3d at 211–13. Following a jury 

trial, Piccinini was convicted of two counts of animal cruelty pursuant to 

section 828.12(2), Florida Statutes (2015). Id. at 211. The evidence 

established that on two occasions, Piccinini intentionally inflicted excessive 

and unnecessary pain and suffering on a dog, resulting in the dog’s death. 

Id. After a sentencing hearing, the trial court imposed a sentence within the 

statutory maximum; on appeal, we vacated Piccinini’s sentence and 

remanded for resentencing. Id. at 211–13. 

 1 See State v. Piccinini, 47 Fla. L. Weekly S107 (Fla. Apr. 1, 2022). 
3

The only issue on remand is whether the holding in Davis is limited to 

those cases in which a defendant made statements at sentencing 

demonstrating a failure to take responsibility, or whether the decision also 

encompasses cases in which a defendant’s trial testimony does the same.

Our supreme court recently answered this question in State v. Burns, 47 Fla. 

L. Weekly S139 (Fla. June 2, 2022), which held that “although the ‘freely 

offered statements’ on which the trial court relied in sentencing Burns were 

made during trial rather than an allocution, the court was [] under no 

obligation to ignore them and was permitted to consider them in imposing 

the sentence.” (quoting Davis, 332 So. 3d at 978). 

Accordingly, in light of Davis and Burns, we find no error in the trial 

court’s consideration of Piccinini’s trial testimony when imposing sentence,

which the court found demonstrated a lack of remorse. 

AFFIRMED.

EISNAUGLE and SASSO, JJ., concur.

COHEN, J., concurs specially with opinion. 
4

Case No. 5D17-2919

LT Case No. 2016-CF-10220

COHEN, J., concurring specially, with opinion.

I am in complete agreement with Justice Polston’s dissent in Davis that 

permitting a trial court to consider a defendant’s statements of innocence as 

demonstrative of a lack of remorse places a chilling effect upon a defendant’s 

constitutional rights and amounts to a due process violation. See Davis v. 

State, 332 So. 3d 970, 981–87 (Fla. 2021) (Polston, J., dissenting). 

There is a critical difference between a sentencing court’s finding that 

a defendant completely fabricated his defense, as had occurred in Grayson, 

and a finding that a defendant who maintains his innocence is not amenable 

to rehabilitation. By conflating the two and sentencing accordingly, 

individuals charged with crimes will be forced to choose between maintaining 

their innocence at trial and sentencing—and risk a finding that they lack 

remorse—or remaining silent. In my view, this scenario runs contrary to 

constitutional due process protections that underpin our criminal justice 

system. See id. at 986 (“The judicial process, which is grounded on 

constitutional due process, protects a defendant’s right to maintain 

innocence and does not punish a defendant for doing so.”). However, I am 
5

bound by the majority opinion in Davis as well as the opinion in State v. 

Burns, 47 Fla. L. Weekly S139 (Fla. June 2, 2022).