DAVID PHILLIP RYAN

v.

THE STATE OF FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed December 13, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0589 Lower Tribunal No. F21-20316

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David Phillip Ryan,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge. Carlos J. Martinez, Public Defender, and Nicholas A. Lynch and Andrew Stanton, Assistant Public Defenders, for appellant. Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee. Before LOGUE, C.J., and EMAS and BOKOR, JJ. EMAS, J.

David Ryan appeals a final judgment of conviction and sentence,

following a jury trial, for misdemeanor trespass and resisting an officer

without violence.¹ On appeal, he raises four issues: (1) the trial court erred

in denying Ryan’s motion to empanel a twelve-person jury instead of a six-

person panel, in violation of the Sixth Amendment to the United States

Constitution; (2) the trial court abused its discretion in denying his

peremptory challenge of a prospective juror; (3) Ryan is entitled to

resentencing because the judge’s comments at a post-sentencing hearing

indicate vindictiveness in the prior imposition of sentence; and (4) Ryan is

entitled to resentencing because the record raises a reasonable question as

to whether the judge sentenced Ryan based on the credibility of his trial

testimony. We affirm, and write to more fully address the final point raised

on appeal.2

Ryan contends the trial court’s sentence was fundamentally erroneous

because it was based in some part on the court’s belief that Ryan did not

testify truthfully at trial. Specifically, Ryan challenges statements made by

the trial court during a post-sentencing hearing on defendant’s motion, at

which defendant sought post-trial release pursuant to Florida Rule of

Criminal Procedure 3.691. Ryan sought such release either by supersedeas

bond pending appeal, or by reconsideration of the incarcerative portion of

the sentence (ninety days in county jail to be reduced to credit time served

upon Ryan’s entry into an inpatient alcohol/drug treatment facility). At one

point during the hearing, Ryan’s wife spoke with the court in support of the

request, and told the court her husband had not been drinking since the day

of his arrest. After hearing from Ryan’s wife, the trial court denied the motion

to reconsider, explaining to Ryan’s wife:

You know, there are a couple of issues that I have with – with this – with the request. One is the facts that came out at trial. How abusive – how abusive and insulting Mr. Ryan was. His testimony at trial was completely inconsistent with the other witnesses. His counteroffer [prior to commencement of trial] was to immediately have all the charges dismissed, to have an apology letter written by these two officers published in the Miami Herald. . . . Ma’am, your motion is denied. This court could have

1st DCA 2021); Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008). We note, however, that this issue is currently pending on a petition for writ of certiorari in the United States Supreme Court. See Guzman v. Florida, No. 23-5173 (Docketed July 17, 2023); Cunningham v. Florida, No. 23-5171 (Docketed July 21, 2023).

sentenced Mr. Ryan to 364 days in custody followed by 364 days in custody. And based on the facts that came out during this trial, this Court gave that very serious consideration. (Emphasis added).

Traditionally in Florida, it was “fundamental error for a sentencing judge

to take into consideration a defendant’s truthfulness while testifying.” Ward

v. State, 152 So. 3d 679, 679 (Fla. 4th DCA 2014). See also Daytona Beach

v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985); Beauvais v. State, 475 So. 2d 1342 (Fla. 3d DCA 1985). However, the Florida Supreme Court, relying

on federal precedent in United States v. Grayson, 438 U.S. 41 (1978),

recently clarified the law in this area, adopting the proposition that “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.” State v. Burns, 339 So. 3d 965, 967 (Fla. 2022). While the

record is not entirely clear on whether (or the extent to which) the trial court

considered Ryan’s testimony at the time it imposed sentence, we hold,

pursuant to Burns, that it was not error for the trial court to consider Ryan’s

testimony in fashioning the appropriate sentence. See also Davis v. State,

332 So. 3d 970, 977 (Fla. 2021) (“[B]ecause Davis waived the right to

maintain his silence, the trial court did not violate Davis's right to due process

by considering the words that Davis voluntarily offered in imposing a

sentence . . . . [At sentencing Davis] chose to make a lengthy statement

claiming innocence, denying responsibility, and placing blame for his

conviction on the alleged misconduct of others. The trial court was under no

obligation to ignore such statements and did not err in considering those

statements in imposing the legal sentence here.”)

Affirmed.³