Defendant’s Right to Allocute



the right to allocute to a sentencer prior to being sentenced is a fundamental right in American criminal law

On June 2, 2022, the Florida Supreme Court issued its opinion in Burns v. State.  The facts of Burns are quite common.  The defendant made a confession and later, at trial, testified and retracted that confession and professed his innocence to his jury.  The issue before the Florida Supreme Court was whether, at sentencing, the trial court could consider that a defendant demonstrated a lack of remorse and lied under oath at trial when he denied guilt.

Of course there are some issues with the court’s assertion that the defenant lied under oath as that is a legal conclusion absent an admission by a defendant that he did so.  Of course such conclusions are made all of the time in state, federal, and military courts by judges.  In military courts-martial, there is an instruction called the “mendacity instruction” for sentencing where the defendant testified at trial in such a way that the jury must have found the defendant to have lied in reaching its verdict.  The instruction is as follows:

(MENDACITY:) MJ: The evidence presented (and the sentencing argument of trial counsel) raised the question of whether the accused testified falsely before this court under oath. No person, including the accused, has a right to seek to alter or affect the outcome of a court-martial by false testimony. You are instructed that you may consider this issue only within certain constraints. First, this factor should play no role in your determination of an appropriate sentence unless you conclude that the accused did lie under oath to the court. Second, such lies must have been, in your view, willful and material, meaning important, before they can be considered in your deliberations. Finally, you may consider this factor insofar as you conclude that it, along with all the other circumstances in the case, bears upon the likelihood that the accused can be rehabilitated. You may not mete out additional punishment for the false testimony itself. 

This brings us back to Burns. Under Florida Rules of Criminal Procedure, a judge cannot sentence a defendant until the defendant has been given the opportunity to alloculate.  To allocute is not the same thing as to testify.  Allocution is the last chance for a defendant to bring matters to the attention of the sentencer prior to imposition of a sentence.  It can be anything in the defendant’s background and history or the crime that may be relevant to the sentence.  Expresions of remorse are common especially where the defendant pleaded guilty.  It is not a chance to for a defendant to profess his or her innocence, though this does happen in cases where the defendant was tried by jury, did not testify, and was found guilty.  Burns was a bit different because the defendant did not allocute and the issue was whether the testimony at trial could be used for sentencing.

The court in Burns held that a court may use any of the defendant’s voluntary statements – including trial testimony – for sentencing.  In this case, the Florida Supreme Court found that the trial judge did not err when he used the defendant’s trial testimony to establish a lack of remorse for sentencing.  The court also recognized that the trial court could use a defendant’s “in-court falsehoods” in reaching a sentence.

why this case is important for criminal defendants in the State of florida.

Under Burns any defendant that testifies and denies guilt but is  convicted can presumably receive a more severe sentence based on a lack of remorse and alleged false testimony.  While this is worrisome, this has been the rule in both military and federal criminal practice for a very long time.  In fact, under the Federal Sentencing Guidelines, a defendant who “accepts responsibility” is entitled to a reduced guideline calculation.  A criminal defense attorney should advise any client who wants to take the stand at trial or allocute that anything they say – including professing innocence – can be used against him or her to sentence. 

Attorney Patrick Korody has been practicing criminal defense for more than 15 years.  He is one of the few attorneys nationally who has significant experience in state, federal, and military criminal defense.  

Korody Law, P.A. 118 W. Adams Street, Suite 500, Jacksonville, FL 32202 - (904) 383-7261

Jacksonville FL Military Lawyer Patrick Korody handles personal injury, criminal defense, and military law issues including court-martial, security clearance revocation, security clearance denied, security clearance suspended. Jacksonville Florida Mayport Kings Bay NAS Jacksonville NAS JAX Naval Station Mayport Patrick Air Force Base Charleston Naval Weapons Station NAS Key West NAS Pensacola NAS Whiting Field Criminal Defense Lawyer. Criminal Defense Attorney former JAG lawyer provides services to Navy Air Force Marine Corps Army military members. Court-Martial Court Martial Courtmartial adsep boi security clearance revoked security clearance suspended. Military member DUI in Jacksonville, FL. Military sexual assault defense lawyer: sexual contact, rape, indecent assault, child pornography possession. Under investigation by NCIS? Call us. NJP appeals. Administrative Separation Boards. Military trial attorney. Civilian counsel for military members. Offices located on Mayport Road.