RICHARD LEROY HAYES , Appellant,

v. STATE OF FLORIDA , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 13

- 3545

____ _________________________/ Opinion filed September 11, 2014. An appeal from the Circuit Court for Duval County

. James H. Daniel , Judge

. Nancy A. Daniels, Public Defender and A. Victoria Wiggins, A s sistant Public Defender, Tallahassee , for Appellant.
Pa mela Jo Bondi, Attorney General and Lauren Brudnicki, Assistant Attorney General, Tallahassee , for Appellee.

CLARK, J. Richard Leroy Hayes appeals his habitual felony offender (“HFO”) sentence for possession of a firearm by a convicted felon and posses sion of cocaine while armed . He assert s that the sentence is unconstitutional due to the sentencing judge’s comments about Hayes’ maintaining his innocence despite the jury ’s verdict and fail ing to take responsibility or show remorse for his actions

.App ellant seeks reversal of the sentence as an unconstitutional punishment for his exercis e of his right s to due process , to a jury trial, and to not incriminate himself. Because the record does not support Appellant’s assertion that his sentences were impos ed as punishment for his exercise of his constitutional rights, t he sentences are aff i rmed.
At the sentencing hearing , A ppellant stipulated to his habitual felony offender (“HFO”) status, pursuant to section 775.084(1)(a), Florida Statutes . The statutory maximum sentence was thus thirty years. § 775.084(4)(a), Fla. Stat. After witnesses testified on Appellant’s behalf, the court heard counsel’s arguments.
T he State emphasized Appellant’s lengthy previous record and recommended concurrent sentences of f ifteen years . Defense counsel, in support of a lenient sentence, concluded the arguments thusly: But again, Your Honor, we would ask for three years. Mr. Hayes, I have no doubt, will do everything he can to do his best to obtain a GED while he is inca rcerated, and that I just know that it would be improper to punish him simply for maintain in g his innocence. Immediately after the defense’s argument, the court introduced its pronouncement of the sentence with an explanation of its reasoning. Referring to the defense’s argument , the court stated: No one is punishing Mr. Hayes for maintaining his innocence. He maintained his innocence, and the evidence was such that the jury 2found him guilty beyond a reasonable doubt of not only armed possession of coc aine but possession of a firearm by a convicted felon. And there is competent substantial evidence to support that verdict.
The court then discussed Appellant’s record of offenses, sentences, and unsuccessful terms of supervised release over the precedin g thirteen years. Finally, the court stated:
So Mr . Hayes has exhibi t ed a pattern of drug a c tivi t y t ha t has been unbroken sin c e he turned the age of 15 . There has been absolutely no in c lination by Mr. Hayes tod ay that he has taken r esponsi b ility for what happened and maybe in an effort to continue to main t ain his inno c en c e for purposes of appeal and l ater t ria l , t hat is fine, b ut the Court has seen no remorse, no t ak i ng any responsi b ility for what he has done. And in fa c t there c ontinues to b e a ll ega t ions t hat somehow my attorney didn ’ t do what I asked her t o do or the Court made, you know, erroneous rul ings, and it c ouldn ’ t be the fact that maybe t here was eviden c e against m e that I had a gun in a renta l c ar a l ong with coc a i ne, and I ’ m a c onvi ct ed fe l on. B ut be that as it may, Mr. Hayes is an habitual felony offender. He has stipulated to being an ha b i t ual fe l ony o f fender, and the Court will find that he is an habitual felony offender, and find t hat it is appropriate to classify him as an ha b i t ua l fe l ony of fender

. The court adjudicated Appellant guilty of the offenses and sentenced him to twelve years’ incarceration on each count, to run concurrently, with a statutorily required three

- year minimum mandatory provision. There was no objection to the court’ s comments at the time they were made, no objection to the sentence at the time it was pronounced , and no motion to

correct any illegality of t he sentence pursuant to rule 3.800(b), Florida Rules of Criminal Procedure

. The sentence did not exceed the stat utory maximum of thirty 3years and did not depend on statutory aggravating or mitigating factors. Appellant was sentenced as an HFO with a statutorily required mandatory minimum, so no departure from the criminal punishment code guidelines occurred. In ad dition, the twelve

- year sentences were less than the fifteen years requested by the State. Ordinarily, a sentence “within the minimum and maximum lim i ts set by the legislature ‘is a matter for the trial [c]ourt in the exercise of its discretion, which

c annot be inquired into upon the appellate level. ’ ” Norvil v. State , 39 Fla. L. Weekly D520, 2014 WL 940724, *2 (Fla. 4th DCA Mar. 12, 2014) ( quoting Nusspickel v. State , 966 So. 2d 441, 444 (Fla. 2d DCA 2007)). If the written sentence contains an error, such as failure to include jail credit or failure to conform to the pronounced sentence, rule 9.140(e), Florida Rules of Appellate Procedure , requires a contemporaneous objection at sentencing or the filing of a motion to correct the sentence under rule 3. 800(b), Florida Rules of Criminal Procedure, to preserve the error for review. Jackson v. State , 983 So. 2d 562, 569 (Fla. 2008). However, if the error asserted is fundamental constitutional error in the sentencing proceedings and not in the sentencing o rder itself, rule 3.800(b) does not apply and is not a prerequisite to an appeal. Id

. at 5 74 ; Nawaz v. State , 28 So. 3d 122 (Fla. 1st DCA 2010). Further, i t is well settled that a trial court’s remarks during sentencing which show reliance on constituti onally impermissible factors to

4support the severity of the sentence can constitute a denial of the defendant’s due process rights and thus constitute fundamental error which may be raised for the first time on appeal

. See Torres v. State , 124 So. 3d 439 (Fla. 1st DCA 2013). This C ourt and others have reversed numerous sentences due to fundamental error where the comments of the sentencing judge showed that the court considered the defendants’ lack of remorse and refusal to admit guilt in determining the length of the sentence. See Dumas v. State , 134 So . 3d 1048 (Fla. 1st DCA 2013); Jackson
v. State , 39 So. 3d 427 (Fla. 1st DCA 2010) (citing multiple cases therein).
W hile it is fundamental error to punish a defendant for exercising his or her
consti tutional rights, we decline to hold that any mention by a sentencing judge of a defendant’s claim of innocence or failure to “take responsibility” during a sentencing hearing automatically renders the sentence an infringe ment of the
defendant’s constitutio nal right to maintain one’s innocence . In this case, t he record shows that the sentence was based on the valid grounds of Appellant’s stipulated and unchallenged status as an HFO

. The trial court specifically stated that Appellant was not being punished f or maintaining his innocence, in response to a suggestion by defense counsel that such punishment would be illegal. Although the trial court s urmised that Appellant maintained his innocence for appellate reasons and the possibility of future re

- trials, an d observed that Appellant had not shown any remorse or tak en responsibility for “what he has done” over his

5lengthy criminal history, the court discounted these factors as affecting the sentence by stating immediately thereafter : “ But be that as it may, M r. Hayes is an habitual felony offender .” The transcript of the sentencing hearing in this case does not give rise to a presumption that the sentence was imposed as a punishment for Appellant’s exercise of his cons t itutional rights. Viewing the trial court’s comments in the context of the record as a whole, and considering th at the sentence was shorter than requested by the State and not otherwise enhanced or aggravated beyond any guideline or recommendation , we conclude that the HFO sentence was const itutionally valid because it was not based

on Appellant’s exercise of his constitutional right to maintain his innocence. Aliyev v. State , 835 So. 2d 1232 (Fla. 4th DCA 2003) (“ [ W ] e cannot conclude on this record that Aliyev was punished for maintaining hi s innocence.”) ; see also Nusspickel v. State , 966 S o. 2d 441 (Fla. 2d DCA 2007) ( context of record as whole demonstrated fair sentencing process with relevant and reliable factors considered by trial court in imposing sentence, despite judicial comments ab out leniency of the jury’s verdict)

. Accordingly, the sentence is A FFIRMED. VAN NORTWICK and SWANSON, JJ., CONCUR.

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