SAMUEL GERALDO VELEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a defendant is not required to be personally present when a sentence is corrected to comply with the legal maximum if the corrected sentence is concurrent with a longer sentence.
[1] A defendant is not entitled to be personally present at a resentencing hearing when the reduction of a sentence is a ministerial act and does not affect the controlling s…
[2] A reduction of a sentence to the legal maximum, when that sentence is concurrent with a longer controlling sentence, is a ministerial act.
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Join FLexlaw to unlock all legal intelligenceThe defendant's sentence on one count was reduced to the legal maximum because it exceeded the statutory limit. This sentence was concurrent with a li…
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On Rehearing Denied
COPE, J.
On consideration of the appellant’s motion for rehearing, the Court withdraws its previous opinion and substitutes the following opinion:
This is an appeal of an order on the motion of defendant-appellant Samuel G. Velez to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
The defendant maintains that he should have been personally present when the trial court entered an order resentencing him on count one. Under the circumstances of this case, the defendant is incorrect.
At his sentencing in 1991,* the court imposed a fifty-year sentence on count one. Velez v. State, 596 So. 2d 1197, 1199 (Fla. 3d DCA 1992). In his rule 3.800(a) motion, the defendant argued, and the trial court agreed, that the fifty-year sentence exceeded the thirty-year legal maximum on count one. The court entered an order reducing the sentence on count one to thirty years.
Under the circumstances of this case, it was not necessary for the defendant to be personally present for this resentencing. That is so because count one was concurrent with count two, on which the defendant is serving a life sentence. The controlling sentence is the life sentence. The reduction of the sentence on count one to the legal maximum, thirty years, was a ministerial act and the defendant was not entitled to be personally present. See Richardson v. Moore, 754 So. 2d 64, 65 (Fla. 3d DCA 2000); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998).
In his second point, the defendant challenges the life sentence and three-year mandatory minimum sentence imposed for count two, armed burglary. This claim was raised by the defendant in a previous rule 3.800(a) motion, the denial of which was affirmed on appeal. Velez v. State, 920 So. 2d 9 (Fla. 3d DCA 2006). The current claim is therefore barred by collateral estoppel and the law of the case doctrine. State v. McBride, 848 So. 2d 287, 289-90 (Fla.2003).
The remaining points are without merit.
Affirmed.
*
The crime date on this count was April 27, 1990.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jordan v. State, 143 So. 3d 335 (Fla. 2014)…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) (finding that re-sentencing on one of two counts is a ministerial act if the defendant is serving a concurrent sentence of equal or greater length)). The district court acknowledged that this Court abrogated the concurrent se…
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Harris v. State, 12 So. 3d 764 (Fla. 3d DCA 2008)…ctions to correct the written sentence for count one to reflect the oral pronouncement of sixty years. Harris is not entitled to a new sentencing hearing because he is serving a concurrent life sentence on count two for burglary. See Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008). Rehearing granted in part; petition granted in part; remanded with instructions.…
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Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012)…tate, 919 So. 2d 602, 604 (Fla. 3d DCA 2006). This Court previously has held that resentencing for a concurrent offense, when the defendant is serving a sentence of equal or greater length on another conviction, is a ministerial act. Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008). We recognize that the Florida Supreme Court abrogated this concurrent sentence doctrine in 1970. Frizzell v. State, 238 So. 2d 67 (Fla.1970). There the court concluded that concurrent re-sentencing was a crucial stage requiring t…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998)
- Velez v. State, 596 So. 2d 1197 (Fla. 3d DCA 1992)
- Richardson v. Moore, 754 So. 2d 64 (Fla. 3d DCA 2000)