JAMES A. HAKKENBERG, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 2d DCA | 2004-12-17
No. 2D04-387
STRINGER and KELLY, JJ., Concur.
889 So. 2d 935 Florida District Court of Appeal, Second District (2004) Positive Treatment
Cited by 18 cases

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Synopsis

Hakkenberg petitioned for relief based on ineffective assistance of appellate counsel for failing to preserve a sentencing error claim. The court granted the petition on the ground that appellate counsel should have filed a motion to correct sentencing error when Hakkenberg was resentenced by a successor judge without a showing of necessity, which violated Florida Rule of Criminal Procedure 3.700(c)(1).


Holding

Appellate counsel was ineffective for failing to preserve the sentencing error by not filing a rule 3.800(b)(2) motion. Because the record did not demonstrate that resentencing by the successor judge was necessary, the substitution violated Rule 3.700(c)(1). The court reversed Hakkenberg's sentences and remanded for resentencing.


Headnotes

[1] A successor judge may not resentence a defendant in a noncapital case if the record does not demonstrate that the substitution of judges is necessary or dictated by an em…

[2] Failure of appellate counsel to file a motion to correct sentencing error under rule 3.800(b)(2) may constitute ineffective assistance of appellate counsel.

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Key Quotes

“even in the absence of prejudice to the defendant, it is reversible error for a successor judge to sentence a defendant where the record does not show that the substitution of judges is 'necessary' or dictated by an 'emergency.'”

Establishes the legal standard that successor judge sentencing requires a showing of necessity, regardless of prejudice

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Facts & Procedural History

Hakkenberg was originally sentenced in two criminal cases (98-13627 and 98-13721). A successor judge (different from the original sentencing judge) se…

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Opinion of the Court
CANADY, Judge.

CANADY, Judge.

James A. Hakkenberg, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises four grounds of ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein and reverse Hakkenberg’s sentences and remand to the trial court for .resentencing. Our resolution of this ground makes it unnecessary to address the remaining grounds of the petition.

In the second ground of his petition, Hakkenberg alleged that appellate counsel was ineffective for failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on the ground that he was improperly resentenced by a successor judge without a showing of necessity.

The record establishes, and the State acknowledges, that a judge1 other than the one who originally sentenced Hakkenberg set aside his sentences in trial court case numbers 98-13627 and 98-13721, based on a finding that they were illegal, and resen-tenced him to two concurrent terms of twelve years’ prison followed by three years’ probation.

This court affirmed the direct appeal from the judgments and sentences in those cases in Hakkenberg v. State, 840 So. 2d 234 (Fla. 2d DCA 2003) (table decision).

Florida Rule of Criminal Procedure 3.700(c)(1) states that in a noncapital case “in which it is necessary that sentence be pronounced by a judge other than the judge who ... accepted the plea, the sentencing judge shall not pass sentence until the judge becomes acquainted with ... the facts, including any plea discussions, concerning the plea and the offense.” This court has held that “even in the absence of prejudice to the defendant, it is reversible error for a successor judge to sentence a defendant where the record does not show that the substitution of judges is ‘necessary’ or dictated by an ‘emergency.’ ” Clemons v. State, 816 So. 2d 1180, 1182 (Fla. 2d DCA 2002).

This rule is applicable where the defendant initially pleaded, the sentence was set aside by the trial court as an illegal sentence, and the defendant was then resentenced by a successor judge. See id. at 1181-82. In Clemons, we held that “[bjecause the record [did] not demonstrate that resentencing by the successor judge was necessary, the substitution was not proper under rule 3.700[ (l)(c)].” 816 So. 2d at 1182. We therefore reversed and remanded for re-sentencing in accordance with rule 3.700(c)(1).

Id.

In the present case, petitioner did not object in the trial court to being improperly sentenced by a successor judge; however, this issue could have been preserved for appellate review had appellate counsel filed a rule 3.800(b)(2) motion to correct sentencing error in the trial court. See Snyder v. State, 870 So. 2d 140, 143 (Fla. 2d DCA 2004); Persaud v. State, 821 So. 2d 411, 413 (Fla. 2d DCA 2002). Appellate counsel’s failure to preserve the sentencing error in this case for review by neglecting to file a rule 3.800(b)(2) motion in the trial court constitutes ineffective assistance of appellate counsel. See Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2003).

Had appellate counsel preserved and argued the issue that Hakkenberg was improperly resentenced by a successor judge without a finding of necessity, we would have been compelled to reverse his sentences and remand for resentencing based on this court’s decisions in Snyder, Per-saud, and Clemons. Because a new appeal would be redundant in this instance, we reverse Hakkenberg’s sentences in case numbers 98-13627 and 98-13721 and remand for resentencing in accordance with rule 3.700(c)(1). See Hernandez v. State, 884 So. 2d 281, 282 (Fla. 2d DCA 2004) (citing Johnson v. Wainwright, 498 So. 2d 938, 939 (Fla.1986)).

Petition granted.

STRINGER and KELLY, JJ., Concur. . Hakkenberg alleges that the original sentencing judge was transferred to the civil division. However, this is neither confirmed nor refuted by the attachments to the petition or the response.


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Citator

Cited By

  • Jackson v. State, 952 So. 2d 613 (Fla. 2d DCA 2007)
    …DCA 2005) (holding that a claim that a defendant was improperly sentenced by a successor judge without a showing of necessity is a sentencing error that must be preserved by objection at sentencing or by a rule 3.800(b) motion); Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004) (same). See generally Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007) (holding that defendant’s claim that evidence presented at sentencing hearing was inadmissible was not subject to preservation as a sentencing error pursuan…
  • Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)
    …rule 3.800(b). See Washington v. State, 814 So. 2d 1187, 1189 (Fla. 5th DCA 2002); Drayton v. State, 791 So. 2d 522, 524 (Fla. 4th DCA 2001). In the present case, there was no objection and no rule 3.800(b) motion was filed. In Hakkenberg v. State, 889 So. 2d 935, 937 (Fla. 2d DCA 2004), this court held: “Appellate counsel’s failure to preserve the sentencing error in this case for review by neglecting to file a rule 3.800(b)(2) motion in the trial court constitutes ineffective assistance of appellate counse…
  • Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007)
    …e grant the petition solely as it relates to this claim. Because a new appeal would be redundant, we reverse Jones’s sentence and remand with directions to the trial court to resentence Jones in accordance with this opinion. See Hakkenberg v. State, 889 So. 2d 935, 937 (Fla. 2d DCA 2004). The petition is denied in part and granted in part. KELLY and VILLANTI, JJ, Concur. . Jones was sentenced pursuant to section 775.084, Florida Statutes (2001). However, the year of the statute does not impact our decision…

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