JOSE ARMANDO ORTA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Defendant Orta appealed his resentencing after a probation violation conviction, arguing the trial court violated his constitutional right to be present during resentencing proceedings. The Third District Court of Appeal held that a defendant has a fundamental right to be present at resentencing, even when correcting an illegal sentence, because resentencing is not a ministerial act.
A defendant has a constitutional right to be present at resentencing proceedings, even when correcting an illegal sentence based on a recalculated scoresheet. Resentencing is not a ministerial act because when the scoresheet is corrected and results in a reduced sentencing range, the trial court is not obligated to impose the same sentence as originally pronounced.
[1] A defendant is constitutionally entitled to be present at all fundamental stages of a criminal proceeding, including sentencing.
[2] An error in denying a defendant the right to be present at a critical stage of a proceeding is fundamental error.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A defendant is constitutionally entitled to be present at all fundamental stages of a criminal proceeding, including sentencing.”
Establishes the fundamental constitutional right at issue in the case
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOrta pled guilty and was sentenced to probation. After a probation violation hearing, the trial court sentenced him to 60.9 months based on a guidelin…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Right To Be Present At Sentencing cases and more on FLexlaw
PER CURIAM.
Defendant appeals from a sentencing Order, which granted his motion to correct an illegal sentence and corrected his sentence, and from the trial court’s denial of his motion for downward departure, on the ground that the trial court proceeded with these actions without the defendant’s presence. The defendant pled guilty and was sentenced to four years of probation in case numbers 01-33176, 03-24916, OS-24917, and 03-27648. An affidavit of violation of probation was subsequently filed against defendant, and a probation violation hearing was held. At the conclusion of the violation hearing, the trial court found that the defendant violated his probation and sentenced him to “the bottom of the guidelines,” which, pursuant to the scoresheet, was a 60.9 months sentence.
On September 30, 2004, the defendant filed a motion to correct illegal sentence, alleging that the guideline sheet was improperly calculated because the trial court incorrectly attributed to him a second degree murder prior conviction instead of an aggravated battery prior conviction. The defendant also sought a downward departure on the ground that he was intoxicated at the time of the violation. At the hearing on the motion to correct the illegal sentence, counsel requested the defendant’s presence. The court denied the request to have the defendant present; granted the motion to correct sentence, realizing the score sheet error; and resen-tenced the defendant to the bottom of the recalculated scoresheet, which was 54.15 months. Additionally, the trial court denied the defendant’s request for downward departure, finding that Section 921.0016(4), Florida Statutes, does not authorize a downward departure for use of controlled substances, and that Section 921.0016(5), Florida Statutes, specifically provides that intoxication/addiction is not a mitigating factor for departure. The defendant appeals.
A defendant is constitutionally entitled to be present at all fundamental stages of a criminal proceeding, including sentencing. Fla. R.Crim. P. 3.180(a)(9); Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001). Moreover, any error in denying a defendant her or his right to be present at a critical stage of any proceeding is fundamental error. Dougherty, 785 So. 2d at 1223. Florida has, however, recognized an exception in resentencing cases where only the “ministerial act” of sentence correction is required. Frost v. State, 769 So. 2d 443, 444 (Fla. 1st DCA 2000); Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)(correcting a discrepancy between the oral pronouncement and the written sentence).
After reviewing the Record, we conclude that resentencing in the instant case does not involve a “ministerial act.” In Roy v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998), the First District remanded the defendant’s case for resentencing based upon an incorrect scoresheet which, when correctly recalculated, resulted in a reduced sentencing range. The Court specifically found that the defendant’s presence was required at resentencing. Id. at 1349 (citing Phillips v. State, 705 So. 2d 1320 (Fla.1997) (resentencing is an entirely new proceeding and the trial court is under no obligation to make the same findings)); see also Dougherty, 785 So. 2d at 1223.
In the instant case, when the trial court corrected and recalculated the score sheet to reflect the defendant’s accurate prior convictions, it resulted in a reduced sentencing range. Although the trial court originally pronounced its intention to sentence the defendant to “the bottom of the guidelines,” it was not obligated to do so.
See Phillips, 705 So. 2d at 1322. Accordingly, we find that the trial court erroneously denied the defendant’s right to be present at resentencing, vacate the defendant’s sentence, and remand for resentencing with the defendant present.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
-
Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)…sentencing following a successful rule 3.800(b) motion. See Rivers v. State, 980 So. 2d 599, 600-01 (Fla. 2d DCA 2008). Violation of this fundamental right is reversible error. See Blair v. State, 25 So. 3d 46, 48 (Fla. 5th DCA 2009); Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); Roy v. State, 711 So. 2d 1348, 1349 (Fla. 1st DCA 1998). However, a court may resentence a defendant in his or her absence in two circumstances. First, a defendant may waive the right to be present. See Brown [*529] v. Stat…
-
Jordan v. State, 143 So. 3d 335 (Fla. 2014)…nt.” Jordan, 83 So. 3d at 911. Jordan appealed this determination. Id. The Third District found that Jordan was not constitutionally entitled to be present at resentencing as his resentencing was only a “ministerial act.” Id. (citing Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006) (holding that a defendant is not constitutionally entitled to be present at resentencing where the resentencing is only a ministerial act to correct a prior sentence); Velez v. State, 988 So. 2d 707, 708 (Fla. 3d DCA 2008) (f…
-
Edgardo Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013)…for aggravated assault. Because Estremera’s sentencing scoresheet must be recalculated, we also remand for resentencing on the remaining convictions which are affirmed. Estrem-era is entitled to be present when he is resentenced. See Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006) (concluding that resentencing on a recalculated scoresheet is not a “ministerial act,” and, thus, the defendant had the right to be present). AFFIRMED in part, REVERSED in part, and REMANDED with instructions TORPY and EVANDER…
Previewing 3 of 15 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)
- Phillips v. State, 705 So. 2d 1320 (Fla. 1997)
- Rudder v. State, 769 So. 2d 443 (Fla. 1st DCA 2000)
- Williams v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)
- Frank v. State, 697 So. 2d 584 (Fla. 4th DCA 1997)
- ROY v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998)