Mark Duane Hodges v. State of Florida

FIFTH D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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Case No. 5D2025-1998
LT Case No. 2024-CF-000622-A
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MARK DUANE H ODGES,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
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On appeal from the Circuit Court for Seminole County.
Michael J. Rudisill, Judge.
Matthew J. Metz, Public Defender, and Joseph Chloupek,
Assistant Public Defender, Daytona Beach, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Deborah
Chance, Assistant Attorney General, Daytona Beach, for
Appellee.
March 27, 2026
L AMBERT , J.
Appellant, 	Mark 	Hodges, 	was 	charged 	in 	a 	one-count
information with committing the crime of false imprisonment, a

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third-degree felony.1 	During the course of the litigation, Hodges,
who was sixty-three years old and had no criminal record as an
adult, received an offer from the State to plead guilty to an
amended 	charge 	of 	disorderly 	conduct, 	a 	second-degree
misdemeanor, 	with 	a 	recommended 	sentence 	of 	six 	months’
probation. Hodges rejected this offer.
On the morning of trial, the prosecutor offered to Hodges that
if 	he 	tendered 	an 	open 	plea 	to 	the 	charged 	offense 	of 	false
imprisonment, the State would recommend to the trial court that
an adjudication of guilt be withheld so that Hodges would not be a
convicted felon. Hodges rejected this offer and proceeded to a jury
trial.
The jury found Hodges guilty of false imprisonment, and the
trial court deferred sentencing to allow for the preparation of a
presentence investigation report. Prior to the sentencing hearing,
Hodges, through his court-appointed counsel, filed a sentencing
memorandum in which he requested that the trial court withhold
an adjudication of guilt and that he be placed on probation, which
he also argued at the sentencing hearing.
Hodges was the only witness presented by either party at the
sentencing hearing. 	Hodges testified that he was a veteran,
having served in the United States Army, and that he had retired
at the rank of staff sergeant. 	Hodges also apologized to the trial
court, the prosecutor, the victim,2 his wife of twenty-nine years,
and their three children.
1 See § 787.02(1)(a), Fla. Stat. (2023).
2 The victim in this case was an employee of a bee removal
company. 	He was dispatched by his employer to remove bees at
an apartment complex where Hodges lived. 	The bee colony was
located in the second-floor balcony ceiling of Hodges’s apartment.
Hodges was not home at the time, and the victim was given access
to Hodges’s apartment by maintenance workers of the apartment
complex. 	The victim entered Hodges’s apartment and had nearly
completed his work when Hodges returned home. Hodges saw the
victim on his balcony. 	Approximately fifty to sixty bees were also
on the balcony. Hodges, who would testify at trial to being allergic

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Following argument from the prosecutor and defense counsel,
the trial court began announcing its sentence. 	Pertinent to this
appeal, the court, in its early comments, said of Hodges that
“[c]ertainly if this was a plea, I would have withheld adjudication
[of guilt], but this was trial and the jury found him guilty, and so
he of course is being adjudicated guilty.” 	The court next observed
that 	Hodges 	had 	been 	given 	the 	opportunity 	to 	plead 	to 	a
misdemeanor and though it stated that it would not punish Hodges
for going to trial, it followed with “[Hodges’s] punishment is that
he is now a convicted felon, which is a shame, because everybody
did everything they could to avoid that.”
The court placed Hodges on three years’ probation; and, as
indicated, he is now an adjudicated felon. 	The present case is
Hodges’s direct appeal of his judgment and sentence.
II
Hodges raises three arguments for reversal. 	Preliminarily,
we find no merit to his first two arguments regarding the trial
court declining to give a jury instruction requested by Hodges and
the court’s overruling the defense counsel’s objections to certain
questions asked by the prosecutor during cross-examination of
Hodges. We affirm on these issues without further discussion.
However, for the following reasons, we agree with Hodges’s
third argument that the trial court committed fundamental error
during 	sentencing. 	We 	therefore 	vacate 	the 	judgment 	and
sentence and remand with directions that Hodges be resentenced
by a different judge.
III
Under 	the 	Sixth 	Amendment 	of 	the 	United 	States
Constitution and Article I, Section 16 of the Florida Constitution,
to bees, locked the victim on the balcony. 	Approximately thirty
minutes to an hour passed before an off-duty law enforcement
officer who lived at the apartment complex convinced Hodges to
unlock the balcony. The victim then left.

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Hodges had the right to trial by jury, which he properly exercised.
This 	constitutional 	right, 	however, 	becomes 	illusory 	when 	a
defendant is punished for exercising this sacred right. 	See Walek
v. State, 129 So. 3d 1185, 1187 (Fla. 2d DCA 2014) (“A defendant
should not be punished for exercising his [or her] constitutional
right to stand trial before a jury of his [or her] peers, and this is so
even when asking for a trial is not ‘the sole reason for the severity
of [the] sentence.’” (third alteration in original) (quoting Moorer v.
State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006))).
Though the jury found Hodges guilty of committing the
crime of false imprisonment, the trial court here was not required
to adjudicate him guilty. 	See § 948.01(2), Fla. Stat. (providing
discretion to a trial court to withhold an adjudication of guilt).
Hodges, sixty-three years old and with no prior adult criminal
record, understandably sought to have an adjudication of guilt
withheld.
We have no difficulty in concluding that the trial court, by
adjudicating him a felon, penalized Hodges simply for exercising
his right to a jury trial. 	The court expressly and clearly stated as
much when it told Hodges during sentencing that had he tendered
a plea, an adjudication of guilt would have been withheld, but since
Hodges elected not to plead and was later found guilty at trial by
the jury, “he of course is being adjudicated guilty.” In other words,
had Hodges not elected to proceed to trial, his punishment or
sentence would have been less harsh—namely, he would have
received a withhold of adjudication of guilt and would not be an
adjudicated felon.
In Little v. State, we held that a trial court’s general policy
of not considering a defendant’s downward departure sentencing
request once the defendant exercised his or her constitutional right
to a jury trial constituted fundamental error as it violated a
defendant’s right to due process. 152 So. 3d 770, 772 (Fla. 5th DCA
2014) (citing Jackson v. State, 983 So. 2d 562, 575 (Fla. 2008)). We
see no meaningful difference between the comments of the trial
judge in Little that he would not “disrespect” the jury’s verdict by
thereafter imposing a downward departure sentence, id., and the
trial 	judge’s 	comment 	here 	that 	he 	would 	have 	withheld 	an
adjudication of guilt had Hodges pled to the charge, but since the

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jury found him guilty, “he of course is being adjudicated guilty.”
Stated slightly differently, though a trial court has wide discretion
regarding factors that it may consider when sentencing, what it
cannot do when sentencing is use a defendant’s right to plead not
guilty and proceed to trial against him or her because due process
guarantees an individual the right to maintain innocence. 	See
generally Moore v. State, 286 So. 3d 887, 887–88 (Fla. 2d DCA
2019).
Accordingly, we affirm Hodges’s conviction, but vacate the
judgment and sentence and remand for resentencing before a
different judge. See Herman v. State, 161 So. 3d 452, 454 (Fla. 5th
DCA 2014) (“When 	the comments 	of 	a sentencing court 	may
reasonably be viewed as suggesting that the sentence was, at least
in 	part, 	based 	on 	the 	defendant’s 	decision 	to 	go 	to 	trial,
resentencing before a different judge is appropriate.” (quoting
Walek, 129 So. 3d at 1188)).3
A FFIRMED, IN PART; JUDGMENT AND SENTENCE V ACATED;
R EMANDED 	FOR 	RESENTENCING 	BEFORE 	A 	DIFFERENT 	JUDGE
CONSISTENT WITH THIS OPINION .
JAY , C.J., and KILBANE , J., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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3 The State commendably conceded in its answer brief that if
this court found the trial court’s comments during sentencing
reflected a violation of due process, resentencing before a different
judge would be appropriate.