KEITH LAMAR SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that re-sentencing a defendant without counsel present is error.
Defendant was convicted of Attempted Robbery and Aggravated Battery and sentenced as a violent habitual offender. After a motion to correct an illegal…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Keith Lamar Smith, defendant, appeals his re-sentencing for the crimes of Attempted Robbery and Aggravated Battery. We reverse.
.Both sides agree that the following facts are accurate. The State of Florida filed an information charging defendant with Attempted Robbery and Aggravated Battery. After conviction, the defendant was adjudicated a violent habitual offender and sentenced to thirty-years incarceration on the Attempted Robbery and forty-years on the Aggravated Battery.
A motion to correct illegal sentence was filed on October 12, 2000, alleging that at the time defendant’s offense was committed the violent habitual offender statute was unconstitutional. ’ On January 23, 2001, the trial court granted defendant’s Motion to Correct Illegal Sentence and, without defendant being present or represented by counsel, re-sentenced defendant as an habitual offender to thirty-years on the Aggravated Battery and ten-years on the Attempted Robbery.
Pursuant to defendant’s pro se appeal, this court reversed defendant’s sentence since neither defendant nor counsel were present at the re-sentencing. See Smith v. State, 791 So. 2d 1253 (Fla. 3d DCA 2001). On October 31, 2001, defendant appeared in court for re-sentencing. Over defendant’s objection, and without appointing counsel, the court re-sentenced defendant to thirty-years as an habitual offender on the Aggravated Battery' and ten-years on the Attempted Robbery. The court ultimately appointed the Public Defender’s office to represent the defendant on appeal.
The State correctly concedes that re-sentencing the defendant without the benefit of counsel was error. See Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001); Taylor v. State, 745 So. 2d 341 (Fla. 3d DCA 1999). Accordingly, we remand this case for re-sentencing, at which time the defendant will be present and represented by the Public Defender. Reversed and remanded.
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Spivey v. State, 829 So. 2d 386 (Fla. 3d DCA 2002)…relief under Heggs v. State, 759 So. 2d 620 (Fla.2000). We vacate the sentencing order and remand for a determination whether Heggs is applicable and for resentencing. The defendant shall be present and represented by counsel. [*387] Smith v. State, 820 So. 2d 1052 (Fla. 3d DCA 2002). Reversed and remanded for resentenc-ing. * We have granted the petition for belated appeal of this order.…
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Jordan v. State, 853 So. 2d 558 (Fla. 3d DCA 2003)…ng him, on the ground that he was sentenced without counsel present. The state properly concedes that the resentencing of the defendant without the benefit of counsel was error. See Spivey v. State, 829 So. 2d 386 (Fla. 3d DCA 2002); Smith v. State, 820 So. 2d 1052 (Fla. 3d DCA 2002). [*559] Accordingly, we remand this case for resentencing, at which time the defendant will present and represented by the Public Defender. Reversed and remanded for resentenc-ing.…
Authorities Cited
- Yoany Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001)
- Taylor v. State, 745 So. 2d 341 (Fla. 3d DCA 1999)
- Peoples v. State, 791 So. 2d 1253 (Fla. 3d DCA 2001)
- Smith v. State, 791 So. 2d 1253 (Fla. 3d DCA 2001)