LISA MARIE MACAN,

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. 1D13-5496

_____________________________/

Opinion filed December 1, 2015.

An appeal from the Circuit Court for Santa Rosa County.

Marci L. Goodman, Judge.

Nancy A. Daniels, Public Defender, and Zachary F. Lawton, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal 

Appeals, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Lisa Macan, appeals her judgment and sentence for neglect of an 

elderly person without great bodily harm, possession of a controlled substance, and 
2

petit theft. We affirm her convictions without further comment. However, because 

we agree that the trial court fundamentally erred when it considered Macan’s lack of 

remorse when imposing the sentence, we vacate the sentence and remand for 

resentencing before another judge.

Ordinarily, a trial court’s imposition of a sentence within the minimum and 

maximum limits is a discretionary matter. Nusspickel v. State, 966 So. 2d 441, 444 

(Fla. 2d DCA 2007). However, a claim that a court has considered a constitutionally 

impermissible factor in imposing a sentence may be reviewed for fundamental 

error.1

 Nawaz v. State, 28 So. 3d 122, 124-25 (Fla. 1st DCA 2010). 

Macan was convicted for stealing morphine from an elderly hospice patient 

in her care while working as a nurse at an assisted living facility. When the victim 

did not respond to two doses of morphine administered within a short period of time 

and appeared to continue suffering, another nurse discovered that the prescription 

appeared to be watered down. After the assisted living facility confirmed that the 

morphine had been diluted, Macan provided signed statements to law enforcement 

and to her employer admitting that she took the morphine. However, at trial she 

maintained her innocence and testified that her written statements were untrue. The 

jury returned guilty verdicts on all counts. 

 

1 Our review is de novo. See Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010).
3

At sentencing, the court referred at least eight times to Macan’s failure to take 

responsibility, show remorse or empathy, or apologize to the family of the victim. 

The court cited Macan’s lack of remorse as “what bothers [the court] the most,” 

“what has bothered [the court] throughout,” and “the whole problem.” These 

statements continued even after defense counsel noted that a defendant who is 

maintaining innocence will not show remorse. The court proceeded to impose a 

sentence of five years’ probation for neglect of an elderly person, with 364 days in 

county jail as a condition of probation, a consecutive term of four years’ probation 

for possession of a controlled substance, and time served for the petit theft.

Macan argues the trial court fundamentally erred when it imposed a sentence 

that took into consideration her failure to show remorse. It is a violation of due 

process to punish a defendant for maintaining his or her innocence. Jackson v. State, 

39 So. 3d 427, 428 (Fla. 1st DCA 2010). Thus, where a defendant protests his or 

her innocence throughout trial and at sentencing, it is constitutionally impermissible 

for the trial court to consider lack of remorse when imposing the sentence. Williams 

v. State, 89 So. 3d 304, 305 (Fla. 1st DCA 2012). Although the mere mention of a 

defendant’s “claim of innocence or failure to ‘take responsibility’ during a 

sentencing hearing” will not necessarily rise to the level of fundamental error, Hayes 

v. State, 150 So. 3d 249, 252 (Fla. 1st DCA 2014), where a “statement made by the 

trial court can reasonably be read only as conditioning the sentence, at least in part, 
4

upon appellant's claim of innocence,” fundamental error occurs. Jackson, 39 So. 3d 

at 428.

Here, the court did not merely mention in passing Macan’s refusal to take 

responsibility for her actions. Hayes, 150 So. 3d at 252. Rather, the court repeatedly 

referred to Macan’s lack of remorse throughout the sentencing hearing. Because the 

trial court’s comments can be reasonably read as conditioning Macan’s sentence, at 

least in part, on her claim of innocence, Jackson, 39 So. 3d at 428, we reverse and 

remand for Macan to be resentenced before a different judge. Williams, 89 So. 3d 

at 305.

We also note the State’s concession of error as to an apparent discrepancy 

between the oral and written assessments of fees and costs. 2

 On remand, the written 

assessment must conform to the oral pronouncement. See Brammer v. State, 554 

So. 2d 671 (Fla. 2d DCA 1990). Any discretionary assessments must be specifically 

identified at resentencing. Mills v. State, 40 Fla. L. Weekly D2165 (Fla. 1st DCA 

June 17, 2015), reh'g denied (Sept. 24, 2015).

Accordingly, we AFFIRM Macan’s convictions, VACATE her sentence, and 

REMAND for resentencing before a different judge. 

BENTON, ROWE, and MARSTILLER, JJ., CONCUR.

 

2 Appellant preserved this issue through a timely motion to correct sentencing error 

filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).