KEITH BINES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Keith Bines appealed his resentencing following a successful Rule 3.800(a) motion that struck his habitual violent felony offender designation. The court held that Bines was entitled to be present and represented by counsel at resentencing, rights he was denied when the trial court ordered resentencing by clerk amendment without a hearing.
The trial court erred by failing to conduct a resentencing hearing in Appellant's presence with counsel. Appellant has a constitutional right to be present and represented by counsel at resentencing following a meritorious Rule 3.800(a) motion. The resentencing order must be vacated and Appellant must be resentenced at a proper hearing.
[1] A defendant has a right to be present at resentencing proceedings.
[2] A defendant has a right to be represented by counsel at resentencing proceedings.
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Join FLexlaw to unlock all legal intelligence“A defendant has a right to be present at resentencing from a rule 3.800(a) motion.”
Establishes the fundamental procedural right violated in this case
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Join FLexlaw to unlock all legal intelligenceBines was convicted of a life felony with an offense date of May 4, 1997, and was originally sentenced as a habitual violent felony offender. He filed…
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BROWNING, J.
This case number was assigned to three separate notices of appeal filed by Appellant. The first was on an order denying a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm that order without further comment. The second was on an order granting a motion to correct sentencing error filed pursuant to rule 3.800(a). The third was directed toward the resentencing that stemmed from the granting of that rule 3.800(a) motion. These latter notices of appeal were redes-ignated by this Court as a direct appeal from the resentencing. See King v. State, 795 So. 2d 1086 (Fla. 1st DCA 2001). On this direct appeal, Appellant is entitled to relief.
Appellant was resentenced because he correctly alleged in his rule 3.800(a) motion that he should not have been habit-ualized on his conviction, which was for a life felony with an offense date between October 1, 1995, and May 24, 1997. See Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002). He appeals the resentencing because, he alleges, he was neither present nor represented by counsel at the resentencing. His claim has merit.
A defendant has a right to be present at resentencing from a rule 3.800(a) motion. Roy v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998). A defendant also has the right to be represented by counsel at resentencing under a meritorious rale 3.800(a) motion. McDonald v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996). Here, Appellant alleges that he was denied these rights, and the record does not refute his allegations. In fact, the record supports his allegations, in that the trial court’s order on the rale 3.800(a) motion states that “[t]he Clerk of this Court shall do an Amended/Corrected Judgment and Sentencing Order consistent with [the trial court’s findings],” and that “[t]he Clerk shall send a certified copy of the Amended/Corrected Judgment and Sentencing Order to the Department of Corrections.” Thus, the trial court erred, the new sentence must be vacated, and Appellant must be resentenced at a hearing where he is present and is represented by counsel.
Appellant’s offense date of May 4, 1997, also falls within the window period for claims under Heggs v. State, 759 So. 2d 620 (Fla.2000), which declared the 1995 sentencing guidelines unconstitutional. See Trapp v. State, 760 So. 2d 924 (Fla.2000). Therefore, on remand, Appellant should be sentenced under the 1994 sentencing guidelines.
Accordingly, we AFFIRM the order denying Appellant’s rule 3.850 motion, and AFFIRM the order granting the rale 3.800(a) motion to the extent that it strikes Appellant’s habitual violent felony offender designation, but REVERSE the order on the rule 3.800(a) motion to the extent that it orders resentencing without the presence of Appellant or his counsel, and REMAND for resentencing under the 1994 guidelines in the presence of Appellant and his counsel.
DAVIS and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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McGOUGH v. State, 876 So. 2d 26 (Fla. 1st DCA 2004)…present or represented by counsel, and we agree. A defendant has the right to be present during resentenc-ing from a meritorious rule 3.800(a) motion, and has the right'to be represented by counsel at such a resentencing. See, e.g., Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003). Appellant alleges that he was denied both of these rights, and the record is devoid of contrary evidence. Appellant’s resentencing was more than a ministerial act, such as entering a written sentence where none exists, as in Wil…
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Acosta v. State, 46 So. 3d 1179 (Fla. 2d DCA 2010)…be present and to be represented by counsel at any resentencing proceeding from a rule 3.800(a) motion except when it concerns issues that are purely ministerial in nature. See Rivers v. State, 980 So. 2d 599, 600 (Fla. 2d DCA 2008); Bines v. State, 837 So. 2d 1146, 1147 (Fla. 1st DCA 2003). However, where the resentencing is within the trial court’s discretion, the resentenc-ing is not purely ministerial, and a defendant is entitled to be present at the hearing. See Mullins v. State, 997 So. 2d 443, 445 (Fla.…
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Cross v. State, 18 So. 3d 1235 (Fla. 1st DCA 2009)…the mandatory minimum, but otherwise kept the sentences of 10 years’ imprisonment. A defendant has the right to be present and represented by an attorney at resentencing. See McGough v. State, 876 So. 2d 26, 26 (Fla. 1st DCA 2004); Bines v. State, 837 So. 2d 1146, 1147 (Fla. 1st DCA 2003). Although the State argues that the striking of the minimum mandatory term was merely ministerial and did not require the presence of the appellant or his counsel, we conclude otherwise and determine that further proceeding…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- King v. State, 795 So. 2d 1086 (Fla. 1st DCA 2001)
- ROY v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998)
- McDONALD v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996)
- Nationwide Mut. Ins. Co. v. Waters, 810 So. 2d 1101 (Fla. 1st DCA 2002)
- Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002)
- Busl v. State, 679 So. 2d 1273 (Fla. 5th DCA 1996)