PAUL CROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this postconviction relief appeal, the Florida First District Court of Appeal reversed and remanded the trial court's summary denial of a defendant's claim that he was improperly resentenced without his presence or counsel, while affirming the trial court's denial of claims involving double jeopardy and ineffective assistance of counsel.
A defendant has the right to be present and represented by counsel at resentencing, and striking a mandatory minimum term is not a merely ministerial matter that can be done in the defendant's absence. The court affirmed the denial of double jeopardy and ineffective assistance claims but reversed and remanded for resentencing with the defendant and counsel present.
[1] A defendant has the right to be present and represented by counsel at resentencing proceedings.
[2] A trial court's amendment of a sentence, even if intended to correct an error, may require the defendant's presence and representation if it alters the substantive nature…
Previewing 2 of 4 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 has the right to be present and represented by an attorney at resentencing.”
Establishes the fundamental principle that a defendant's constitutional right to presence and counsel extends to resentencing proceedings.
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Join FLexlaw to unlock all legal intelligenceCross was sentenced to concurrent minimum mandatory sentences of 10 years under the 10/20/Life statute. The trial court later realized a sentencing er…
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ON MOTION FOR REHEARING
This cause is before us on the State’s motion for rehearing or rehearing en banc. We deny the motion for rehearing en banc, but grant rehearing, withdraw the opinion issued on July 8, 2009, and substitute the following.
The appellant challenges the trial court’s summary denial of his motion for postcon-viction relief, filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850, in which the appellant claimed that: (1) the trial court improperly resentenced him without allowing him or his attorneys to be present and argue for an appropriate sentence; (2) his sentence violated the prohibition against double jeopardy; and (3) his attorneys provided ineffective assistance of counsel. We affirm the trial court’s summary denial of the appellant’s second and third claims without further discussion. However, we reverse and remand the trial court’s summary denial of the appellant’s first claim.
While the State did not file charges under the 10/20/Life statute, at sentencing, both parties and the court believed that the 10/20/Life minimum mandatory sentence applied. Thus, while trial counsel argued for a downward departure for youthful offender status, which the court rejected, counsel never argued, and the court never considered, any other appropriate sentence. The court then erroneously sentenced the appellant to concurrent minimum mandatory sentences of 10 years. Subsequently, the appellant notified the trial court of its mistake and the court, without the appellant’s presence or that of his counsel, amended the sentence *1236to strike the mandatory minimum, but otherwise kept the sentences of 10 years’ imprisonment.
A defendant has the right to be present and represented by an attorney at resentencing. See McGough v. State, 876 So.2d 26, 26 (Fla. 1st DCA 2004); Bines v. State, 837 So.2d 1146, 1147 (Fla. 1st DCA 2003). Although the State argues that the striking of the minimum mandatory term was merely ministerial and did not require the presence of the appellant or his counsel, we conclude otherwise and determine that further proceedings are warranted. See McGough, 876 So.2d at 26; see also Mullins v. State, 997 So.2d 443, 444 (Fla. 3d DCA 2008).
We accordingly reverse the summary denial of the appellant’s first claim and remand for resentencing in the presence of the appellant and his counsel.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BARFIELD, DAVIS, and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jordan v. State, 143 So. 3d 335 (Fla. 2014)…mum requirement limited the trial court's discretion at the original sentencing hearing, the removal of that requirement restored sentencing discretion to the trial judge, and thus "the resentencing was no longer a ministerial act”); Cross v. State, 18 So. 3d 1235, 1235-36 (Fla. 1st DCA 2009) (relying on Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008), to reject State’s argument that striking the minimum mandatory term was merely ministerial where parties and court falsely believed the 10/20/Life minimum…
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Acosta v. State, 46 So. 3d 1179 (Fla. 2d DCA 2010)…rafficking in cocaine without the mandatory minimum requirement. However, the trial court did so without conducting a hearing where Acosta would have an opportunity to be present with counsel. Acosta argues this was error pursuant to Cross v. State, 18 So. 3d 1235 (Fla. 1st DCA 2009). 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. S…
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Murphy v. State, 49 So. 3d 295 (Fla. 5th DCA 2010)…to judicial error the defendant is entitled to representation. See Nickerson v, State, 927 So. 2d 114, 117 (Fla. 4th DCA 2006). The State concedes that a defendant is generally entitled to counsel at sentencing or re-sentencing. See Cross v. State, 18 So. 3d 1235, 1236 (Fla. 1st DCA 2009) (stating that a defendant has the right to be represented by an attorney at resentencing). However, the State argues that the defendant was not entitled to the appointment of counsel because the trial court’s actions were m…
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
- Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008)
- McGOUGH v. State, 876 So. 2d 26 (Fla. 1st DCA 2004)
- Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003)