A recent smattering from each of our sibling districts demonstrates this point. Strong v. State , 263 So.3d 199 (Fla. 5th DCA 2019) (holding that "the trial judge fundamentally erred when she injected [defendant's] failure to show remorse as a factor in sentencing" requiring a "remand for resentencing before a different judge"); Lawton v. State , 207 So.3d 359, 361 (Fla. 3d DCA 2016) ("The trial court's consideration of remorse ... constituted an impermissible factor in imposing its sentence" such that "consideration of [defendant's] lack of remorse constituted fundamental error"); Pehlke v. State , 189 So.3d 1036, 1037 (Fla. 2d DCA 2016) ("The State concedes that it was fundamental error for the sentencing court to consider [defendant's] failure to demonstrate remorse for his actions and that the sentence must thus be reversed."); Davis v. State , 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) ("A trial court's consideration of a defendant's lack of remorse in imposing its sentence is fundamental error.").Applying the rule here, a plain reading of the sentencing transcript shows that the trial judge reasonably appears to have imposed the sentence, in part, on Davis's failure to take responsibility for the crime proved (possession of a firearm by a felon); indeed, a reader of the transcript could easily conclude that the trial judge imposed the maximum penalty permissib

But it has recognized an exception to the general rule when the trial court considers a defendant's lack of remorse. SeeLawton v. State , 207 So. 3d 359, 361 (Fla. 3d DCA 2016). But despite the holdings in the other district courts, this Court has maintained that appellate review is generally not available when a trial court denies a request for a downward departure.

While a trial court has discretion to consider a wide range of factors when imposing a sentence, consideration of a lack of remorse or failure to take responsibility, under these circumstances, is not permissible and constitutes fundamental error.See Strong v. State, 263 So. 3d 199 (Fla. 5th DCA 2019) ; Robinson v. State, 108 So. 3d 1150 (Fla. 5th DCA 2013) ; see also Lawton v. State, 207 So. 3d 359 (Fla. 3d DCA 2016). In contrast, this Court has distinguished circumstances where a defendant has entered a plea admitting involvement in crimes and seeks mitigation, or where a defendant seeks a downward departure based upon remorse.

In contrast, Strong never injected or argued remorse as a basis for mitigating his sentence and made no apology. We find that the present case is more analogous to the Third District Court of Appeal's case of Lawton v. State , 207 So.3d 359 (Fla. 3d DCA 2016). There, like here, the defendant asserted one ground for a downward departure sentence, unrelated to section 921.0026(2)(j), Florida Statutes, which specifically allows the trial judge to consider a defendant's remorse for his crimes.

Rather than being initiated by the appellant, it was the trial judge that first broached the prospect of appellant's willingness to agree to pay restitution as a way of showing contrition for the injuries suffered by the victim. SeeLawton v. State , 207 So.3d 359, 361 (Fla. 3d DCA 2016). The court's statements during sentencing were clearly imbued with a threat of jail time if appellant refused to "agree" to the restitution.