FRANKLIN L. JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to counsel at a resentencing hearing, and failure to appoint counsel is reversible error.
The appellant challenged his sentence after a rule 8.800(a) motion was granted, resulting in resentencing. The record showed the appellant was not rep…
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In this Anders 1 case, the appellant challenges the sentence imposed after his rule 8.800(a) motion was granted in part and he was resentenced. We reverse and remand.
The record reveals that when the trial court resentenced the appellant he was not represented by counsel. A resentencing is a de novo proceeding to which “the full panoply of due process considerations attaches.” Gonzalez v. State, 888 So.2d 1242 (Fla. 1st DCA 2003). As such, the defendant was entitled to representation of counsel at this critical stage of the proceedings. Id.; Sandoval v. State, 884 So.2d 214 (Fla. 2d DCA 2004). Here, there is no waiver of counsel in the record,2 and therefore, the trial court erred when it failed to appoint counsel for the re-sentencing hearing. Gonzalez, 838 So.2d at 1243. Such an error is never harmless and need not be preserved. Id. The state concedes that the appellant is entitled to be resentenced.
Accordingly, we vacate the appellant’s sentence and remand for resentencing consistent with this opinion.
WOLF, BENTON, and PADOVANO, JJ., concur.
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Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012)…onal impediment imposed by the appeal from the postcon-viction motion to prevent that action. Cooper v. State, 667 So. 2d 932, 933 (Fla. 2d DCA 1996). We have held that “resen-tencing [in the original case] is a de novo proceeding,” Jones v. State, 35 So. 3d 69, 70 (Fla. 1st DCA 2010), legally discrete from the collateral proceeding. Because no notice of appeal was filed within thirty days of the order disposing of the appellant’s postconviction claims, and no issue has been raised regarding the resentenc…
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Preston v. State, 49 So. 3d 1284 (Fla. 5th DCA 2010)…ponse, we find the state has no ‘good faith basis’ to request an evidentiary hearing.”). Furthermore, a re-sentencing hearing is a critical stage in criminal proceedings at which Petitioner has the right to assistance of counsel. See Jones v. State, 35 So. 3d 69 (Fla. 1st DCA 2010); Davis v. State, 800 So. 2d 336 (Fla. 4th DCA 2001). Because counsel was not present, we elect to grant Petitioner a belated appeal, summarily reverse the trial court’s sentencing order, and remand the matter for a new sentencing…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Vincente Sandoval v. State, 884 So. 2d 214 (Fla. 2d DCA 2004)