WARREN RIVERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Warren Rivers appealed multiple guilty plea convictions and sentences. The court affirmed the guilty pleas but reversed and remanded for resentencing because the defendant was improperly absent from a resentencing hearing that was not purely ministerial in nature.
The court affirmed the guilty pleas and judgments but reversed and remanded for resentencing because Rivers had a right to be present at the resentencing proceeding, which was not purely ministerial in nature. The court also agreed that scoring counts in one case as additional offenses for a habitual felony offender was error, though this was not properly preserved.
[1] A defendant has a right to be present at any sentencing proceeding that is not purely ministerial in nature.
[2] A sentencing proceeding is not purely ministerial when the court substantively modifies earlier sentences.
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Join FLexlaw to unlock all legal intelligence“A defendant has a right to be present at any sentencing proceeding except those that are purely ministerial in nature.”
Establishes the fundamental right of defendants to be present at sentencing hearings unless they are purely ministerial
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Join FLexlaw to unlock all legal intelligenceRivers entered guilty pleas in six separate cases involving multiple counts in exchange for concurrent sentences at the 'bottom of the guidelines.' Th…
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GALLEN, THOMAS M., Associate Senior Judge.
Warren Rivers appeals the judgments and sentences imposed by the trial court following his pleas of guilty in six separate cases each involving multiple counts. During the pendency of this appeal, Rivers filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We affirm the judgments but reverse and remand the sentences for the reasons described below.
Although the written plea agreement states that Rivers entered his pleas in exchange for concurrent sentences of 16.5 years, the transcript of the plea hearing shows that the State agreed that Rivers was to receive a “bottom of the guidelines” concurrent sentence for each count. The transcript also shows that the trial court understood that the agreement was for a “bottom of the guidelines sentence,” not for a term of years as may be inferred from the language of the written plea agreement.
The trial court conducted a hearing on Rivers’ motion to correct sentencing errors on October 25, 2006, at which Rivers was not present. When defense counsel called attention to the requirement in Florida Rule of Criminal Procedure 3.180(a)(9) that the defendant be present “at the pronouncement of judgment and the imposition of sentence,” the trial court stated, “I’m going to say that technically this was not a sentencing.” Nevertheless, the trial court proceeded to resentence Rivers, substantively modifying the earlier sentences. A defendant has a right to be present at any sentencing proceeding except those that are purely ministerial in nature. See Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006); Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001). Our review of the record shows that the resen- tencing proceeding in this case was not purely ministerial and that Rivers was entitled to be present at the hearing. Accordingly we reverse and remand for re-sentencing.
Additionally, the State concedes that it was error to score as additional offenses the counts in case number 03-3153 for which Rivers had been sentenced as a habitual felony offender and we agree. Olsen v. State, 791 So. 2d 558, 560 (Fla. 2d DCA 2001); Drayton v. State, 744 So. 2d 584, 585 (Fla. 2d DCA 1999); Perez v. State, 703 So. 2d 1131, 1132 (Fla. 2d DCA 1997). However, this error was not properly preserved by Rivers below.
Affirmed in part, reversed in part, and remanded for resentencing with Rivers present.
DAVIS and SILBERMAN, JJ., Concur.
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Citator
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Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)…); see also Fla. R. Crim. P. 3.180(a)(9) (2010) (stating a defendant “shall” be present during the “imposition of sentence”). A defendant’s right to be present extends to resentencing 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 1…1 / 2
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Acosta v. State, 46 So. 3d 1179 (Fla. 2d DCA 2010)…. The State concedes error. A defendant has a right to 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…
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Darwin v. State, 259 So. 3d 260 (Fla. 2d DCA 2018)…present for the resentencing and argues that the trial court erred by proceeding in his absence. We agree. "A defendant has a right to be present at any sentencing proceeding except those that are purely ministerial in nature." Rivers v. State, 980 So. 2d 599, 600 (Fla. 2d DCA 2008); see also Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (noting that this right has been extended to resentencing hearings). Where the trial court is merely conducting a ministerial act, the defendant's absence from th…
Previewing 3 of 5 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)
- Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006)
- Olsen v. State, 791 So. 2d 558 (Fla. 2d DCA 2001)
- Drayton v. State, 744 So. 2d 584 (Fla. 2d DCA 1999)
- Dywayne Tony Wilson v. State, 703 So. 2d 1131 (Fla. 1st DCA 1997)
- Perez v. State, 703 So. 2d 1131 (Fla. 2d DCA 1997)