MICHAEL DOUGHERTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Dougherty challenged his resentencing under Heggs v. State, arguing he was denied his constitutional right to be present at the resentencing hearing. The Fourth District Court of Appeal reversed, holding that because the resentencing involved more than a ministerial act, Dougherty had a fundamental right to be present and be heard.
A defendant has a constitutional right to be present at resentencing that is more than a ministerial act. Because Dougherty's resentencing required more than ministerial correction—his original sentence was above what could be imposed without departure under the 1994 guidelines—it was fundamental error to resentence him without a hearing and in his absence.
[1] A defendant has a constitutional right to be present at all stages of proceedings where fundamental fairness may be thwarted by their absence.
[2] The imposition of a sentence is a crucial stage at which a defendant is entitled to be present.
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Join FLexlaw to unlock all legal intelligence“A defendant is constitutionally entitled to be present at all stages of proceedings where fundamental fairness may be thwarted by the defendant's absence.”
Establishes the foundational constitutional principle underlying the right to be present at resentencing.
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Join FLexlaw to unlock all legal intelligenceDougherty was originally sentenced to 60 months under the 1995 sentencing guidelines, which were later declared unconstitutional in Heggs v. State. Hi…
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WARNER, C.J.
Within appellant’s challenge to his re-sentencing pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000), he alleges that he was harmed by the absence of a new sentencing hearing, as he was unable to appear and be heard with respect to his sentence. Because a defendant has a right to be present at a resentencing that is more than a ministerial act, we reverse.
Appellant filed a motion to correct an illegal sentence pursuant to Heggs, claiming that he should have been sentenced under the 1994 sentencing guidelines. Instead, he was sentenced under the 1995 guidelines declared unconstitutional in Heggs. 759 So. 2d at 627. He was entitled to relief because his sentence of 60 months which was at the bottom of under the 1995 guidelines would have exceeded the guidelines range under the 1994 guidelines. See id. In its response, the state admitted that appellant was entitled to resentencing. Without holding a sentencing hearing, the trial court stated that it had “reviewed the matter fully and has full recollection of the reasons the original sentence was imposed.” The court entered an amended sentence of 50 months, which was at the top of the 1994 guidelines.
A defendant is constitutionally entitled to be present at all stages of proceedings where fundamental fairness may be thwarted by the defendant’s absence. Papageorge v. State, 710 So. 2d 53, 54 (Fla. 4th DCA 1998). The imposition of a sentence is a crucial stage at which the defendant is entitled to be present. See Fla. R.Crim. P. 3.180(a)(9); Capuzzo v. State, 596 So. 2d 438, 439 (Fla.1992). An exception is made in resentencing cases where all that is required on remand is a ministerial act of sentence correction. See Frost v. State, 769 So. 2d 443, 444 (Fla. 1st DCA 2000); Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997).
However, “[a] criminal defendant has a right to be present at sentencing, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful 3.850 challenge.” Barcelo 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 than a ministerial act was required. Fundamental error occurred when the court entered the amended sentence without holding a sentencing hearing with appellant present. We therefore reverse for a new sentencing hearing. See Barcelo, 774 So. 2d at 895.
Appellant also claimed in his motion to correct his sentence that he was entitled to additional jail credit. We cannot conclude from the record that he is entitled to any more credits. However, our affirmance on this issue is without prejudice to appellant readdressing the issue of jail credit at his resentencing.
Reversed and remanded for resentencing.
FARMER and SHAHOOD, JJ., concur.
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Citator
Cited By (22 total)
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Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006)…ction is not a mitigating factor for departure. The defendant appeals. A defendant is constitutionally entitled to be present at all fundamental stages of a criminal proceeding, including sentencing. Fla. R.Crim. P. 3.180(a)(9); Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001). Moreover, any error in denying a defendant her or his right to be present at a critical stage of any proceeding is fundamental error. Dougherty, 785 So. 2d at 1223. Florida has, however, recognized an exception in resenten…
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McGOUGH v. State, 876 So. 2d 26 (Fla. 1st DCA 2004)…ce where none exists, as in Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997), or changing the written sentence to conform with the oral pronouncement of sentence, as in Frost v. State, 769 So. 2d 443 (Fla. 1st DCA 2000). See Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001) (citing those two cases in support of the proposition that a defendant’s [*27] presence is not required when resentenc-ing is merely a ministerial act). Accordingly, the trial court erred, the new sentence must be vacated,…
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Cleo Lecroy v. State, 954 So. 2d 747 (Fla. 4th DCA 2007)…We affirm the order of resen-tencing, as the entry of the sentence by the circuit court in conformance with the requirements of the supreme court was a ministerial act for which the presence of the defendant was not required. See Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001) (“The imposition of a sentence is a crucial stage at which the defendant is entitled to be present. An exception is made in resentencing cases where all that is required on remand is a [*748] ministerial act of sentence cor…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Capuzzo v. State, 596 So. 2d 438 (Fla. 1992)
- Rudder v. State, 769 So. 2d 443 (Fla. 1st DCA 2000)
- Papageorge v. State, 710 So. 2d 53 (Fla. 4th DCA 1998)
- Yoany Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001)
- Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)
- Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983)
- Frank v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)
- 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)