JAMES SPENCER, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Spencer appeals his sentences for attempted first degree murder, robbery with a firearm, and burglary of an occupied conveyance. The court found two reversible errors: the 40-year sentence for attempted first degree murder exceeded the 30-year legal maximum, and the successor judge improperly resentenced him by merely adopting the predecessor judge's sentence without independently reviewing the trial proceedings as required by law.
The 40-year sentence for attempted first degree murder exceeds the 30-year legal maximum and must be vacated. The successor judge's resentencing was improper because he failed to become acquainted with the trial proceedings and made an independent sentencing decision, instead merely adopting the predecessor judge's sentence based solely on the arrest form. Resentencing before a properly informed successor judge is required.
[1] A sentence for attempted first degree murder cannot exceed the statutory maximum for a first degree felony.
[2] A successor judge resentencing a defendant must independently acquaint themselves with the trial proceedings and make an independent sentencing decision.
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Join FLexlaw to unlock all legal intelligence“the sentencing judge did not sit at the trial and indicated that the sentence was based entirely upon the recommendation of the trial judge”
Establishes the legal standard for improper resentencing by a successor judge who merely adopts the predecessor judge's recommendation
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Join FLexlaw to unlock all legal intelligenceSpencer was convicted of attempted first degree murder, robbery with a firearm, and burglary of an occupied conveyance with a dangerous weapon. He rec…
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COPE, Judge.
James Spencer, Jr., appeals his sentences for attempted first degree murder, robbery with a firearm, and burglary of an occupied conveyance with a dangerous weapon.
First, although not raised by the parties, the forty-year sentence for attempted first degree murder exceeds the thirty-year legal maximum for a first degree felony. See §§ 775.082(3)(b), 777.-04(4)(a), 782.04(1), Fla.Stat. (1989); Spencer v. State, 588 So. 2d 71 (Fla. 3d DCA 1991). Defendant must be resentenced on that count within the legal maximum.
Second, the sentencing which occurred below was a resentencing before a successor judge. Defendant had appealed the sentence imposed by the judge who tried the case. This court reversed the sentence because of a scoring error. Spencer v. State, 588 So. 2d at 72. Upon correction of the error, defendant was placed in a lower guidelines range.
After remand the case was assigned to a successor judge because the judge who tried the case was no longer sitting. At sentencing the successor judge examined the arrest form. The successor judge noted that the predecessor judge “heard this rather complex long case and sentenced a man to 40 years, right? ... All right, this Court will impose the 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 judge shall not pass sentence until he shall have acquainted himself with what transpired at the trial....
Under the Rule and the decisional law, the sentence must reflect the independent decision of the successor judge. See id.; Moore v. State, 378 So. 2d at 793; Caplinger v. State, 271 So. 2d 780, 781 (Fla. 3d DCA 1973).
Under Caplinger, the successor judge may receive a proffer or statement of proceedings covering so much of the trial proceedings as the parties contend will be relevant for the trial court to make the sentencing decision,1 provided that the court also reviews the presentence investigation report2 and so much of the file as may be pertinent. 271 So. 2d at 781; Castor v. State, 351 So. 2d 375, 376 (Fla. 1st DCA 1977), aff'd, 365 So. 2d 701 (Fla.1978).
Because the matters considered by the trial court fell short of that required by the rule and because there was a timely objection, defendant must be resentenced. We have carefully considered the State’s contention that any error was harmless, but are unable to so find on this record. After conducting a new sentencing hearing in accordance with Rule 3.700(c), the court may impose such sentence as it deems appropriate.
We therefore reverse the sentencing orders as to counts I, II, and III and remand for resentencing.
. Although another alternative is to review the trial transcript, that is not the exclusive means for the successor judge to become acquainted with what transpired at trial.
. The predecessor judge had ordered a presen-tence investigation.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…28, 729-30 (Fla. 5th DCA 2001) (citations omitted). A successor 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 transpi…
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Aleño Santana Madrigal v. State, 683 So. 2d 1093 (Fla. 4th DCA 1996)…o the sentencing judge’s duty. Compare Davis v. State, 677 So. 2d 1366,1368 (Fla. 4th DCA 1996) (sufficient where successor sentencing judge reviewed PSI, heard testimony of counselor and mother and argument from both parties), and Spencer v. State, 611 So. 2d 16 (Fla. 3d DCA 1992) (would be sufficient if successor sentencing judge reviews PSI report and those record portions deemed pertinent), and Castor v. State, 351 So. 2d 375 (Fla. 1st DCA 1977) (sufficient for substitute sentencing judge to consider jur…
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Krishna Persaud v. State, 821 So. 2d 411 (Fla. 2d DCA 2002)…conduct an independent evaluation of the case. See Moore v. State, 378 So. 2d 792 (Fla. 2d DCA 1979) (vacating sentence where sentencing judge indicated that sentence was based entirely upon recommendation of trial judge); see also Spencer v. State, 611 So. 2d 16 (Fla. 3d DCA 1992) (holding that new sentence must reflect the independent decision of the successor judge). Based on the record, we find that the trial court erred in not making an independent evaluation of the facts in this case prior to imposing…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Caplinger v. State, 271 So. 2d 780 (Fla. 3d DCA 1973)
- Castor v. State, 351 So. 2d 375 (Fla. 1st DCA 1977)
- Moore v. State, 378 So. 2d 792 (Fla. 2d DCA 1979)
- Fidel Eladio Diaz v. State, 588 So. 2d 71 (Fla. 3d DCA 1991)
- Spencer v. State, 588 So. 2d 71 (Fla. 3d DCA 1991)