Appellant challenges his [thirty-year sentence] for first-degree sexual battery…. We agree that the trial court’s comments could reasonably be construed to suggest that the trial court based appellant’s sentence, at least in part, on religion. Therefore, we reverse and remand for resentencing before a different judge.
During the sentencing hearing, appellant’s father spoke on appellant’s behalf and stated, “Your Honor, I am here to tell you who is my son. And I’m telling you the truth because I am a Catholic and I believe in the Bible. As a father that I am, I could tell you that my son is innocent.”
Appellant then addressed the court and stated that he was innocent. He asserted that he had been dating the victim, although she was a troubled woman of poor character, and she set him up for the sexual battery charge. Then, the following exchange occurred:
THE COURT: You were married, weren’t you?
[APPELLANT]: Yeah. I was married, but my wife was in my country.
THE COURT: I know that. Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people — that’s not the way anybody with morals should do anything….
At the end of the sentencing hearing, the trial court again commented on appellant’s claims that he had a consensual relationship with a woman other than his wife, stating:
If [the victim] is all what you say she is, you should have been miles and miles and miles away from her. You should never have invited her into your home. You should certainly never have gotten in a vehicle with her and gone bar-hopping. You should not have gone out on dates. You should not have been dancing together and by your own testimony you should not have had prior sexual encounters with her under any set of circumstances once you are married. But forget that two, she’s the kind of person that will turn on you and set you up and that’s what you told me. But yet you continue to have her, you know, be in your life even if it was her that called and said, “Let’s go out.” All you had to do was say no. The problem was, though, you didn’t.
… “Reliance on constitutionally impermissible factors,” including religion, “is a violation of a defendant’s due process rights.” “‘[S]imilar principles apply when a judge impermissibly takes his own religious characteristics into account in sentencing.’”….
Here, we find the trial judge’s comments can reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on religion…. It is unclear how appellant’s fidelity to his wife had any bearing on the charge of sexual battery. Further, the trial judge clearly explained that his condemnation of appellant’s behavior was based on the court’s own religious beliefs, which he assumed he shared with appellant….
No one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion. Moreover, … “for justice to be done, it must also appear to be done.” Because the court’s comments could reasonably be construed as basing the sentence, at least in part, on religion, and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of religion, we vacate appellant’s sentence and remand for resentencing before a different judge.
There’s also an interesting and fairly detailed concurrence by Judge Makar (who’s also a former Florida Solicitor General and author of many law review articles) that surveys the caselaw and scholarship on the subject. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.