Supreme Court of Florida

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No. SC18-1208

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STATE OF FLORIDA,

Petitioner,

vs.

CARL LEWIS BURNS,

Respondent.

June 2, 2022

CANADY, C.J.

We have for review Burns v. State, 43 Fla. L. Weekly D1569,

2018 WL 3371723 (Fla. 1st DCA July 11, 2018), in which the First 

District cited Holton v. State, 573 So. 2d 284, 292 (Fla. 1990), for 

the proposition that “[a] trial court cannot base a sentence on the 

defendant’s choosing to maintain innocence” because “a trial court’s 

use in sentencing of defendant’s assertion of innocence violates due 

process rights.” Burns, 43 Fla. L. Weekly at D1570, 2018 WL 

3371723, at *2. Despite the fact that Burns gave a sworn 

confession to the crimes of which he was convicted, which he 
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retracted during his trial testimony, the district court felt 

“constrained to reverse his sentence because the trial court 

improperly relied on [his] subsequent claim of innocence” in 

imposing his sentence. Id. The First District thus vacated Burns’s 

aggregate 300-year sentence and remanded for resentencing but 

certified the following question to be one of great public importance:

MAY A SENTENCING COURT RELY ON A DEFENDANT’S 

LACK OF REMORSE AFTER THE DEFENDANT HAS 

GIVEN A POST-MIRANDA, SWORN CONFESSION TO 

THE CRIME AND HAS OBVIOUSLY LIED UNDER OATH 

AT TRIAL ABOUT HIS GUILT?

Id., 2018 WL 3371723, at *3. We have jurisdiction. See art. V, 

§ 3(b)(4), Fla. Const.

We stayed the present case pending disposition of Davis v. 

State, 332 So. 3d 970 (Fla. 2021), in which we addressed the 

following similar rephrased certified question:

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE 

ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN 

TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE 

SENTENCING HEARING, VIOLATE THE DEFENDANT’S 

DUE PROCESS RIGHTS BY CONSIDERING THE 

DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR 

HIS ACTIONS?

Davis, 332 So. 3d at 973-74.
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In answering the rephrased question in Davis in the negative, 

we concluded that “Holton’s broad, unqualified statement that 

‘using a protestation of innocence against a defendant’ ‘violates due

process’ ” “constitutes dicta that we expressly disapprove.” Id. at 

975 (quoting Holton, 573 So. 3d at 292). We thus directed Burns in 

the present case to show cause why we should not exercise our 

jurisdiction, summarily quash the decision being reviewed, and 

remand for reconsideration in light of our decision in Davis. Upon 

consideration of Burns’s response to the order to show cause and 

the State’s reply thereto, we have determined to do just that.

Burns’s argument in his response that Davis is inapplicable to 

the facts of Burns because Burns did not voluntarily choose to 

allocute at his sentencing hearing is unpersuasive. Burns has read 

Davis too narrowly.

In Davis, we “h[e]ld that 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.” Id. at 

978. While this holding was narrowly tailored to the facts 

presented in Davis, our reliance on the United States Supreme 
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Court’s decision in United States v. Grayson, 438 U.S. 41 (1978),

confirms that the principles of Davis are not limited to statements 

made only during an allocution.

In Grayson, the Court

reaffirm[ed] the authority of a sentencing judge to 

evaluate carefully a defendant’s testimony on the stand, 

determine—with a consciousness of the frailty of human 

judgment—whether that testimony contained willful and 

material falsehoods, and, if so, assess in light of all the 

other knowledge gained about the defendant the meaning 

of that conduct with respect to his prospects for 

rehabilitation and restoration to a useful place in society.

438 U.S. at 55. Thus, under Grayson, a judge may evaluate 

whether a defendant’s in-court statements contained falsehoods 

and, if so, assess that fact along with all of the other sentencing

considerations.

We concluded our analysis in Davis with this sentence: “Just 

as in Grayson, the sentencing judge here was entitled to consider 

testimony that indicated the defendant’s unwillingness to accept the 

truth and to take responsibility for his own conduct.” Davis, 332 

So. 3d at 978. Thus, 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 similarly under no 
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obligation to ignore them and was permitted to consider them in 

imposing the sentence. See id.

We have already accepted jurisdiction by order. The decision 

under review is quashed, and this matter is remanded to the First

District for reconsideration upon application of this Court’s decision 

in Davis.

No motion for rehearing will be entertained by the Court.

It is so ordered.

LAWSON, MUÑIZ, and COURIEL, JJ., concur.

GROSSHANS, J., concurs in result only with an opinion.

POLSTON and LABARGA, JJ., dissent.

GROSSHANS, J., concurring in result only.

Because Burns’ response to our show cause order lacks merit, 

I concur with the majority in quashing the First District’s decision 

and remanding for reconsideration in light of Davis. However, the 

majority’s opinion goes further. It addresses the scope of Davis, 

discusses the effect of Grayson on Davis, and finds the sentencing 

court’s consideration of Burns’ statements to be proper. Majority 

op. at 4-5 (“Thus, 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 similarly under no 
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obligation to ignore them and was permitted to consider them in 

imposing the sentence.” (citing Davis v. State, 332 So. 3d 970, 978 

(Fla. 2021))). Yet, despite undertaking this analysis, the majority 

ultimately remands for reconsideration under Davis. Consequently, 

there is little left for the district court to do on remand other than 

accept the majority’s suggested holding.

In my view, having previously accepted jurisdiction, it would 

have been proper for us to either issue an opinion fully deciding the 

case after supplemental briefing or summarily quash the decision 

below and remand for reconsideration. Since the majority has not 

chosen either course, I concur in result only.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions/Certified Great Public Importance

First District – Case No. 1D16-5113

(Washington County)

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, 

Jason W. Rodriguez and Virginia Chester Harris, Assistant 

Attorneys General, Tallahassee, Florida,

for Petitioner

Jessica J. Yeary, Public Defender, and David A. Henson, Assistant 

Public Defender, Second Judicial Circuit, Tallahassee, Florida,

for Respondent