ADRIAN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Adrian Davis was convicted of attempted second-degree murder and shooting into an occupied vehicle. On appeal, the court addressed whether Davis had the right to be present and represented by counsel at a re-sentencing hearing required by changes to sentencing guidelines, holding that he did and reversing for a new hearing.
A defendant has the right to be present at re-sentencing and to have counsel present when the re-sentencing involves more than a ministerial act. Re-sentencing under new guidelines when the original sentence was above what could be imposed without departure constitutes more than a ministerial act and triggers these rights.
[1] A criminal defendant has a right to be present at the pronouncement of judgment and the imposition of sentence.
[2] A criminal defendant has a right to counsel at every critical stage of the proceedings against him, including sentencing.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.180(a)(9) 'mandates that criminal defendants be present '[a]t the pronouncement of judgment and the imposition of sentence,' thus recognizing that sentencing is a crucial stage of a criminal trial.'”
Establishes the constitutional requirement that defendants be present at sentencing proceedings
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Join FLexlaw to unlock all legal intelligenceDavis was convicted by jury of attempted second-degree murder and shooting into an occupied vehicle, and initially sentenced to 10 years in prison. Th…
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GROSS, J.
After a jury trial, appellant was convicted of attempted second degree murder and shooting into an occupied vehicle. He was sentenced to 10 years in prison, with credit for 408 days served. On August 25, 1999, this court affirmed the conviction and sentence at Davis v. State, 743 So. 2d 526 (Fla. 4th DCA 1999).
On March 14, 2000, appellant moved to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The state conceded that appellant’s re-sentencing under the 1994 sentencing guidelines was required by Heggs v. State, 759 So. 2d 620 (Fla.2000). Without holding a hearing at which appellant or his counsel was present, the trial court entered an amended sentence on August 10, 2000, vacating the previous sentence and sentencing appellant to 9.71 years in prison. On September 7, appellant filed a motion to correct sentence and an objection to the amended sentence, arguing that it had been entered without a hearing and outside the presence of appellant and his counsel. The circuit court denied the motion.
Florida Rule of Criminal Procedure 3.180(a)(9) “mandates that criminal defendants be present ‘[a]t the pronouncement of judgment and the imposition of sentence,’ thus recognizing that sentencing is a crucial stage of a criminal trial.” Capuzzo v. State, 596 So. 2d 438, 439 (Fla.1992). An exception is made in re-sentencing cases where all that is required on remand is a ministerial act of sentence correction. See Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001). A separate legal requirement is that “a criminal defendant facing incarceration has a right to counsel at every critical stage of the proceedings against him.” Wilson v. State, 764 So. 2d 813, 816 (Fla. 4th DCA 2000). Sentencing is one critical stage of a criminal proceeding at which a defendant is entitled to counsel. Id.
Appellant’s re-sentencing under Heggs was a critical stage of the proceedings involving more than a ministerial act. See Ingram v. State, 789 So. 2d 430, 431 (Fla. 4th DCA 2001). In Ingram, the defendant was originally sentenced to 72 months in prison, with credit for time served. As in this case, the defendant moved to correct his sentence under Heggs. Since the defendant had been sentenced under the invalid 1995 guidelines, the trial court vacated the sentence and re-sentenced him to 71 months, based on the 1994 guidelines. Before the re-sentencing, the court did not appoint counsel for the defendant or hold a new sentencing hearing at which the defendant was present.
This court reversed the sentence in Ingram. Observing that the defendant was entitled to appointed counsel at sentencing, we held that the defendant had a right to be present at re-sentencing, as it involved “more than a ministerial act because [the defendant’s] original sentence was above the sentence that could be imposed without departure under the 1994 guidelines.” Id. at 431. This case is controlled by Ingram.
Reversed and remanded for a new re-sentencing hearing.
GUNTHER and WARNER, JJ., concur.
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Citator
Cited By
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Rogers v. State, 933 So. 2d 664 (Fla. 4th DCA 2006)…reviously ran concurrently with Count I. Based on the petition and Commissioner’s Report, we find that the record shows petitioner was not notified of this amend [*665] ment, which was more than ministerial, in time to appeal it. Cf. Davis v. State, 800 So. 2d 336 (Fla. 4th DCA 2001); Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001). Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal who is directed to treat it as a notice of appeal of t…
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Preston v. State, 49 So. 3d 1284 (Fla. 5th DCA 2010)…to request an evidentiary hearing.”). Furthermore, a re-sentencing hearing is a critical stage in criminal proceedings at which Petitioner has the right to assistance of counsel. See Jones v. State, 35 So. 3d 69 (Fla. 1st DCA 2010); Davis v. State, 800 So. 2d 336 (Fla. 4th DCA 2001). Because counsel was not present, we elect to grant Petitioner a belated appeal, summarily reverse the trial court’s sentencing order, and remand the matter for a new sentencing hearing. Petitioner shall be represented by counsel…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Capuzzo v. State, 596 So. 2d 438 (Fla. 1992)
- Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001)
- Daniels v. State, 764 So. 2d 813 (Fla. 2d DCA 2000)
- Burks v. State, 789 So. 2d 430 (Fla. 4th DCA 2001)