ANTHONY F. PAYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this consolidated appeal, Appellant challenges his resentencing in both of the underlying cases because he was not afforded counsel in either resentencing hearing. Resentencing is a critical stage of a criminal proceeding in which the full panoply of due process considerations attach, including the appointment of counsel. See State v. Scott, 439 So.2d 219, 220 (Fla.1988); Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003). In situations such as here, where a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error. See Nickerson v. State, 927 So.2d 114, 117 (Fla. 2d DCA 2006).
Accordingly, we VACATE Appellant’s sentence in both cases and REMAND for resentencing, with the direction that the trial court use a proper scoresheet during resentencing. On remand, the trial court has the authority in both cases to impose any sentence permitted by law, including the term originally imposed during the challenged resentencing.
BENTON and LEWIS, JJ., concur.
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Frison v. State, 76 So. 3d 1103 (Fla. 5th DCA 2011)…representation. Stang v. State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009). “Resentencing is a critical stage of a criminal proceeding in which the full panoply of due process considerations attach, including the appointment of counsel.” Payne v. State, 38 So. 3d 827, 828 (Fla. 1st DCA 2010). An indigent defendant is entitled to appointed counsel at resentencing after prevailing on a rule 3.800 motion. Mahone v. State, 39 So. 3d 1278 (Fla. 5th DCA 2010). The State acknowledges that a defendant is entitled to co…
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Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)…— was “substantial.” 172 So. 3d at 530. Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent.3 See Payne v. State, 38 So. 3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So. 3d 1103, 1104 (Fla. 5th DCA 2011) (statin…
Authorities Cited
- State v. Scott, 439 So. 2d 219 (Fla. 1983)
- Laine v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003)
- Nickerson v. State, 927 So. 2d 114 (Fla. 2d DCA 2006)