FREDERICK LAWRENCE KELLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Keller appeals his resentencing from a two-year prison term plus community control (under the Youthful Offender Act) to four years imprisonment after discovering he was ineligible for the youthful offender program. The appellate court affirmed the judgment but reversed and remanded for a new resentencing hearing at which Keller must be present, finding that resentencing him in his absence violated his fundamental right to be present at sentencing.
The court affirmed the judgment as to the sentence duration but reversed and remanded for resentencing to be conducted in Keller's presence or with his waiver of that right. The trial court's imposition of a more severe sentence is permissible under established precedent. However, the resentencing in Keller's absence constituted fundamental error requiring a new resentencing hearing with Keller present.
[1] A defendant has a right to be present at the imposition of sentence, including resentencing proceedings, unless that right is waived.
[2] Resentencing a defendant in absentia, without a waiver of the right to be present, constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“the resentencing of a defendant in his absence and without a waiver of his right to be present constituted fundamental error”
Establishes the fundamental right to be present at resentencing, citing Walker v. State
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Join FLexlaw to unlock all legal intelligenceKeller was originally sentenced to two years imprisonment followed by two years in a community control program under the Youthful Offender Act. Upon d…
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FRANK D. UPCHURCH, Jr., Judge.
Keller appeals from an order granting his motion to correct an illegal sentence and from the judgment and sentence entered in accordance with that order. Keller was originally sentenced to two years imprisonment followed by two years in the community control program under the Youthful Offender Act. After it was discovered that Keller was not eligible for the youthful offender program, the trial court changed the sentence to four years imprisonment. Citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) 1, Keller contends that he was improperly sentenced to a more severe prison term than originally imposed.
This court has previously decided this issue against Keller’s contention. See Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982).
Keller also contends the trial court erred in resentencing him in his absence. Florida Rule of Criminal Procedure 3.180(a)(9) provides that the defendant shall be present at the “imposition of sentence.” The state apparently acknowledges, pursuant to this court’s decision in McRae v. State, 400 So. 2d 175 (Fla. 5th DCA 1981), that resentencing under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 2d DCA 1981), requires the presence of the defendant.2 The state, however, contends that because defense counsel was present and offered testimony in mitigation, the resentencing of Keller in his absence was harmless error. In Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972), the court held that the resentencing of a defendant in his absence and without a waiver of his right to be present constituted fundamental error. Here, the record shows that Keller affirmatively requested an opportunity to be present and objected to being sentenced in his absence.
Thus, even though the trial court may impose the same sentence as previously imposed, Keller should be allowed to be present at the resentencing hearing and be given an opportunity to speak in his own behalf. The judgment is AFFIRMED, the sentence is REVERSED and we REMAND for a resentencing hearing at which Keller is present or waives his right to be present.
ORFINGER, C.J., and COWART, J., concur. . There the Supreme Court held that a more severe sentence cannot be imposed on resentencing unless there was misconduct on the part of the defendant occurring after the original sentence which would justify increasing his penalty.
. Although neither defense counsel in his motion to correct the illegal sentence nor the trial judge in his order granting the motion referred to Villery, it is clear that Villery was the basis for invalidating the split sentence.
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Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001)…v. State, 774 So. 2d 895, 896 (Fla. 4th DCA 2001). With the exception of sentence corrections, it is fundamental error to resentence a defendant in his or her absence. See Ellison v. State, 593 So. 2d 1205, 1206 (Fla. 5th DCA 1992); Keller v. State, 432 So. 2d 672, 673 (Fla. 5th DCA 1983); Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972). Here, appellant’s original sentence was above the sentence that could be imposed without departure under the 1994 guidelines. As a result, resentencing that involved more…
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Wagner v. State, 519 So. 2d 751 (Fla. 4th DCA 1988)…red defendant’s presence at resentencings, recognizing that sentencing is a critical stage of a criminal proceeding. See, e.g., State v. Scott, 439 So. 2d 219 (Fla.1983); Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966). See also Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983). Rule 3.180(b) of the Florida Rules of Criminal Procedure provides for the completion of a trial and rendering of a verdict where the defendant has absconded during a trial. However, that rule clearly stops short of authorizing…
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State v. Viele, 559 So. 2d 1304 (Fla. 4th DCA 1990)…hat it bargained for: a mandatory three-year sentence. ⅜ * * * * * If the plea negotiation is not binding upon the defendant, then it is not binding upon the state. Id. at 56. Despite the foregoing authority, the defendant cites Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983); however, Keller does not stand for the proposition that, without the state’s approval, a trial court can resen-tence in contravention of a plea bargain. REVERSED AND REMANDED. HERSEY, C.J., and LETTS and GUNTHER, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982)
- Wesley v. State, 400 So. 2d 175 (Fla. 5th DCA 1981)
- McCRAE v. State, 400 So. 2d 175 (Fla. 5th DCA 1981)
- Manchester Ins. & Indem. Co. v. Lucius Dunkley and Anthony Thompson, 284 So. 2d 415 (Fla. 3d DCA 1973)
- Cleon Donald Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972)