MICHAEL SHAWN MCGOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's resentencing was reversed because he was not present or represented by counsel, violating his constitutional rights, and the trial court erred in conducting a non-ministerial resentencing without his participation.
A defendant has the right to be present and represented by counsel during resentencing on a meritorious Rule 3.800(a) motion, and resentencing that is more than a ministerial act cannot proceed without these protections.
[1] A defendant has a constitutional right to be present and represented by counsel during resentencing on a meritorious Rule 3.800(a) motion when the resentencing involves m…
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Join FLexlaw to unlock all legal intelligence“A defendant has the right to be present during resentencing from a meritorious rule 3.800(a) motion, and has the right to be represented by counsel at such a resentencing.”
Establishing the defendant's constitutional rights during resentencing proceedings.
McGough was resentenced pursuant to a meritorious Rule 3.800(a) motion, but the trial court conducted the resentencing without McGough being present o…
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BROWNING, J.
We treat this as an appeal from Appellant’s resentencing under this Court’s mandate. Appellant argues two issues that have merit, and we reverse.
First, Appellant argues that the trial court erred at resentencing because Appellant was not present or represented by counsel, and we agree. A defendant has the right to be present during resentencing 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 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 presence is not required when resentencing is merely a ministerial act). Accordingly, the trial court erred, the new sentence must be vacated, and Appellant must be resentenced at a hearing where he is both present and represented by counsel.
Second, Appellant is clearly entitled to resentencing as to his conviction under counts III and IV of the information because of the confusing amended sentencing documents, which do not appear to correct the error, and Appellee’s concession of such point.
REVERSED AND REMANDED.
KAHN and WEBSTER, JJ., concur.
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Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)…d DCA 2004); Hansell v. State, 879 So. 2d 646 (Fla. 1st DCA 2004); McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004); Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004); Williams v. State, 876 So. 2d 27 (Fla. 1st DCA 2004); McGough v. State, 876 So. 2d 26 (Fla. 1st DCA 2004); Turner v. State, 875 So. 2d 731 (Fla. 2d DCA 2004); Demps v. State, 874 So. 2d 737 (Fla. 4th DCA 2004); Johnson v. State, 873 So. 2d 558 (Fla. 1st DCA 2004); Carmona v. State, 873 So. 2d 348 (Fla. 5th DCA), review denied, 888 So…
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Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008)…if the resentencing involves additional consideration or sentencing discretion, not if the act to be done is ministerial in nature, such as striking an improper portion of the sentence. Griffin v. State, 517 So. 2d 669 (Fla.1987); McGough v. State, 876 So. 2d 26 (Fla. 1st DCA 2004). Although striking the violent career criminal designation is a ministerial act, here the entire fifteen year sentence must be vacated, and Mullins must be resentenced with an entire new written sentence. See Tumblin v. State, 96…
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Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)…rror if the trial court is merely conducting a ministerial act, such as entering a written sentence where none exists or changing the written sentence to conform to the oral pronouncement of sentence. See Jordan, 143 So. 3d at 339; McGough v. State, 876 So. 2d 26 (Fla. 1st DCA 2004). “However, Florida’s district courts have found that a resentencing in which a trial judge has discretion as to the new sentence is not a ministerial act and thus requires the defendant’s presence.” Jordan, 143 So. 3d at 339 (emp…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001)
- Rudder v. State, 769 So. 2d 443 (Fla. 1st DCA 2000)
- Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003)
- Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)
- Frank v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)