BILLY GENE MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of the motion to suppress video evidence but vacated the sentence.
Defendant appealed the denial of his motion to suppress video evidence, arguing lack of consent to recording. The sentence was also at issue because t…
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STARNES, HUGH E., Associate Judge.
Defendant appeals a denial of his motion to suppress video tape evidence based upon the lack of evidence of consent of the parties to the communication being recorded. No evidence of consent was offered by the State at the suppression hearing. We affirm on this point because even if consent were required (the-state alleged it did not apply because one of the parties was a police officer), there was testimony at trial that consent of one of the parties was obtained.
We must vacate the sentence, however, and remand for resentencing because the sentencing judge did not sit at the trial and indicated the sentence was based entirely upon the recommendation of the trial judge. Where the sentencing judge was not the trial judge Florida Rule of Criminal Procedure 3.700(c) requires that the sentencing judge must not pass sentence until he has acquainted himself with what transpired at the trial.
The sentence is vacated and the case remanded for a new sentencing hearing. If the sentencing judge is not the trial judge he should acquaint himself with what occurred at trial before passing sentence.
HOBSON, Acting C. J., and OTT, J., concur.
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Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…r judge who was not a part of the previous proceedings may not, upon resen-tencing, base a sentence “ ‘entirely upon the recommendation of the [previous] trial judge.’ ” Spencer v. State, 611 So. 2d 16, 17 (Fla. 3d DCA 1992) (quoting Moore v. State, 378 So. 2d 792, 793 (Fla. 2d DCA 1979)). Rather, as prescribed by Florida Rule of Criminal Procedure 3.700(c)(1),3 the successor sentencing judge must “acquaint[] himself [or herself ]with what transpired at the trial” before passing judgment. Moore v. State, 378…1 / 2
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Spencer v. State, 611 So. 2d 16 (Fla. 3d DCA 1992)…same sentence that Judge Davis did.” It has been held that resentencing is required where “the sentencing judge did not sit at the trial and indicated that the sentence was based entirely upon the recommendation of the trial judge.” Moore v. State, 378 So. 2d 792, 793 (Fla. 2d DCA 1979). Florida Rule of Criminal Procedure 3.700(c) provides, in part: In those cases where it is necessary that sentence be pronounced by a judge other than the judge who presided at trial, or accepted the plea, the sentencing ju…
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Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004)…ndependent evaluation of the case. See Persaud, 821 So. 2d at 415. The requirement that a judge conduct an independent evaluation prohibits a successor judge from merely relying on the perceived intentions of the original judge. Id.; Moore v. State, 378 So. 2d 792 (Fla. 2d DCA 1979). We caution, however, that absent a plea agreement stipulating that Snyder would be sentenced at the bottom of the guidelines, Snyder is not entitled to be sentenced at the bottom of the 1994 guidelines simply because he was origi…
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