MATTHEW GAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that resentencing by a different judge without a showing of necessity is error.
Matthew Gay was resentenced by judges other than the one who originally sentenced him. The State conceded error in these substitutions.…
The full statement of facts, procedural history, and disposition for this case are member content.
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SILBERMAN, Judge.
Matthew Gay appeals the sentence that was imposed on resentencing, arguing that he should have been resentenced by the judge who originally sentenced him. The State concedes error. We agree and reverse and remand for resentencing by the original trial judge, unless the State can show that resentencing by a different judge is now necessary.
Judge Downey originally sentenced Gay in 1995. In 2001, after Gay obtained relief under rule 3.800(a), Judge Schaefer resen-tenced him. Gay later filed a motion for postconviction relief that Judge Federico treated as another rule 3.800(a) motion. Judge Federico granted the motion and resentenced Gay.
The record reflects no explanation for the substitution of judges during the re-sentencing proceedings, and the State concedes that the substitutions constitute error. This court has held that “[wjithout a showing of necessity, it is error to permit resentencing by a different judge than the one who heard the evidence at trial and originally imposed sentence.” Persaud v. State, 821 So. 2d 411, 414 (Fla. 2d DCA 2002); see also Fla. R.Crim. P. 3.700(c); Baskin v. State, 898 So. 2d 266, 266 (Fla. 2d DCA 2005); Snyder v. State, 870 So. 2d 140, 142-43 (Fla. 2d DCA 2004).
The State acknowledges that the judge who originally sentenced Gay, Judge Dow-ney, is still available as a circuit judge in Pinellas County, and nothing in the record establishes that it was necessary for other judges to resentence Gay. Accordingly, we reverse and remand for resentencing by the original trial judge unless the State can show that resentencing by a different judge is necessary pursuant to rule 3.700(c) and the cited cases.
Reversed and remanded.
NORTHCUTT and KELLY, JJ., Concur.
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Green v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)…n in Baskin v. State, 898 So. 2d 266 (Fla. 2d DCA 2005), the State concedes that it was error for Green to be sentenced by a judge other than the judge who accepted his plea. See also Lopez v. State, 905 So. 2d 1045 (Fla. 2d DCA 2005); Gay v. State, 898 So. 2d 1203 (Fla. 2d DCA 2005); Clemons v. State, 816 So. 2d 1180 (Fla. 2d DCA 2002). Accordingly, we reverse Green’s sentences and remand for resentencing before the original judge unless the State can demonstrate on the record that resentenc-ing by a differen…
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Quijije v. State, 905 So. 2d 268 (Fla. 2d DCA 2005)…s, should sentence him. The State properly concedes that Judge Hardt erred in sentencing Quijije because Judge Ellis had accepted Quijije’s pleas and the record does not show that it was necessary for another judge to sentence him. See Gay v. State, 898 So. 2d 1203, 1204 (Fla. 2d DCA 2005); Snyder v. State, 870 So. 2d 140, 143 (Fla. 2d DCA 2004); Campbell v. State, 622 So. 2d 603, 603 (Fla. 2d DCA 1993); see also Fla. R.Crim. P. 3.700(c)(1). Therefore, we reverse Quijije’s sentences and remand for resentencin…
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Durbrow v. State, 12 So. 3d 817 (Fla. 2d DCA 2009)…2d DCA 2005). Here, the record does not indicate that the substitution of judges was necessary or dictated by an emergency. For this reason, Mr. Durbrow’s resentenc-ing by the successor judge was not proper under rule 3.700(c)(1). See Gay v. State, 898 So. 2d 1203, 1204 (Fla. 2d DCA 2005); Baskin, 898 So. 2d at 267; Clemons v. State, 816 So. 2d 1180, 1182 (Fla. 2d DCA 2002). Mr. Durbrow was not required to demonstrate harm or prejudice resulting from the fact that a successor judge performed the resentencing…
Authorities Cited
- Snyder v. State, 870 So. 2d 140 (Fla. 2d DCA 2004)
- Krishna Persaud v. State, 821 So. 2d 411 (Fla. 2d DCA 2002)
- Baskin v. State, 898 So. 2d 266 (Fla. 2d DCA 2005)