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Burns v. State

Florida Court of Appeals, First District

July 11, 2018

Carl Lewis Burns, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Washington County. Peter A. Mallory, Judge.

          Andy Thomas, Public Defender; and David Henson, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General; and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.

          KELSEY, J.

         Appellant challenges only his 300-year sentence for ten counts of sexual battery on his adopted daughter (his wife's biological niece) when the girl was fifteen to seventeen years old and in his familial or custodial care. He was sixty. During pre-trial investigation, Appellant gave a post-Miranda, sworn, recorded confession that was admitted into evidence at trial without objection, in which he claimed he committed the sexual battery "about ten" times and continued to do it because he believed the victim began to enjoy it. Thereafter, however, Appellant entered a plea of not guilty, demanded a jury trial, attempted to retract his confession during his trial testimony, and through counsel maintained his innocence at sentencing.

         The trial judge stated at sentencing that the evidence of Appellant's guilt was compelling, and then went on to tie Appellant's lack of remorse to the sentence imposed, as follows: "And the Court finds that you have really shown no remorse and denied that any of this took place. So, the Court is going to sentence you to 30 years for each of the ten counts, for a total of 300 years, which are to be served consecutively." Because the trial judge's comments leave no doubt that he relied improperly on Appellant's claims of innocence, we are constrained to vacate the sentence and remand for resentencing before another judge. We also certify a question of great public importance to the Florida Supreme Court seeking clarification of the legal effect of a defendant's confession of guilt before trial, blatantly lying at trial, and failure to challenge guilt on appeal, in light of precedent barring sentencing courts from relying on claims of innocence.

         Facts

         Appellant admitted in his recorded pre-trial confession, and at trial, that he was aware that the victim had been sexually abused previously by two separate men including her biological father, giving rise to legal proceedings culminating in her adoption into Appellant's family. The victim testified that after Appellant and his wife adopted her, Appellant raped her two or three times a week for over a year and a half. In addition to the victim's testimony, and Appellant's pre-trial confession, DNA evidence retrieved from the victim's body and from her underwear corroborated Appellant's guilt. The victim testified that she was afraid to come forward because she did not want to be removed from another family or be split up from her younger brother.

         Appellant's post-Miranda confession was strikingly detailed. He admitted to most recently having had sex with the victim the previous week, and that it had been going on over a year, about ten times, sporadically. He never used a condom. He "could have" also groped or grabbed her sexually. When asked why he would have intercourse with her, he paused, apparently laughed, said "I gotta see how to say this," then "[s]he had begin [sic] to enjoy it" and had told him so. He admitted he did it at night so he wouldn't get caught, but denied that thinking it was wrong was a reason he did it at night. He took an oath swearing the confession was true, and acknowledged that he could be arrested for perjury for making a false statement.

         Appellant's attempt to retract his confession at trial was strikingly weak. He said the confession was false and he made the confession because he was "going to take up for my young'uns" or "take all the heat for my young'uns." He did not explain what that meant. He claimed his DNA got on the victim's underwear because he would masturbate on an article of his own clothing and then put it in a shared laundry basket containing the victim's clothes. He made up the number "about ten times" as to how often he had sex with the victim. He claimed his health prevented him from having sex, although admitting he had sex with his wife. He could not explain why his semen was on vaginal swabs taken from the victim, except to deny that it was there. He was argumentative with the prosecutor, claiming something (undefined) said before the recorder was turned on somehow (undefined) caused him to lie, and that he would lie under oath at trial "to take up for my children."

         Appellant did not address the court at sentencing, but his counsel reiterated that Appellant continued to deny guilt. The trial court said the following at sentencing (emphasis added):

Okay. Carl Lewis Burns, you've been found guilty by a jury of your peers, of engaging in ten counts of an act which constitutes sexual battery upon or with a child 12 years of age or older, but younger than 18 years of age, by a person in a familial custodial authority.
The Court found [sic] that the evidence in this case was compelling. And the Court finds that you have really shown no remorse and denied that any of this took place. So, the Court is going to sentence you to 30 years for each of the ten counts, for ...

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