TYRONE JORDAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Tyrone Jordan appeals a trial court's resentencing without his presence after the court granted his motion to correct an illegal sentence on a strong-arm robbery conviction. The Third District Court of Appeal affirms, holding that resentencing for a concurrent offense when the defendant is serving an equal or greater sentence on another conviction constitutes a ministerial act not requiring the defendant's presence.
A defendant does not have a constitutional right to be present at resentencing when it constitutes a ministerial act, which includes resentencing for a concurrent offense when the defendant is serving an equal or greater sentence on another conviction. The trial court properly resentenced Jordan without a hearing because the life sentence on the burglary count remained unchanged.
[1] A defendant is constitutionally entitled to be present at resentencing unless the resentencing is a purely ministerial act.
[2] Resentencing for a concurrent offense, when the defendant is serving a sentence of equal or greater length on another conviction, may be considered a ministerial act.
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Join FLexlaw to unlock all legal intelligence“Generally, a defendant is constitutionally entitled to be present at his or her resentencing, unless it is only a 'ministerial act' to correct a prior sentence.”
Establishes the general rule regarding defendant's constitutional right to be present at resentencing and the exception for ministerial acts.
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Join FLexlaw to unlock all legal intelligenceJordan was convicted of strong-arm robbery (second-degree felony) and burglary with assault/battery (first-degree felony). The trial court found him t…
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Tyrone Jordan (defendant) appeals from an order granting his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), and resen-tencing him without a hearing. Because defendant’s resentencing was a ministerial act, we affirm.
Defendant was convicted of one count of strong arm robbery, a second degree felony, and one count of burglary with an assault/battery, a first degree felony. The trial court found that defendant qualified as a habitual violent offender under section 775.084(4), Florida Statutes (1994), and sentenced defendant to life imprisonment with a fifteen-year mandatory minimum on both counts. Thereafter, defendant moved to correct his sentence on the ground that a life sentence for the strong arm robbery count was illegal. The trial court granted defendant’s motion, vacated the prior sentence on the robbery count, and summarily resentenced him to thirty years imprisonment on that count. Because the life sentence on the burglary count remained unchanged, the trial court determined there was no need to hold a resentencing hearing where defendant could be present. Defendant appeals from this ruling.
Generally, a defendant is constitutionally entitled to be present at his or her resentencing, unless it is only a “ministerial act” to correct a prior sentence. Orta v. State, 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 the defendant’s presence because of the possibility of obtaining more favorable consideration for parole. Florida has since abolished the parole system in favor of sentencing guidelines. Thus, as this Court implicitly understood in Velez, the main reason for abrogation of the doctrine no longer exists.
Accordingly, we affirm the sentence entered by the trial court.
Affirmed.
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Jordan v. State, 143 So. 3d 335 (Fla. 2014)…QUINCE, J. This case is before the Court for review of the decision of the Third District Court of Appeal in Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012). In a subsequent order, the district court amended its opinion to certify the following question of great public importance: WHETHER THE CONCURRENT SENTENCE DOCTRINE SET FORTH IN FRIZZELL V. STATE, 238 So. 2d 67 (Fla.1970), REMAI…
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Gonzalez v. State, 221 So. 3d 1225 (Fla. 3d DCA 2017)…ting the analysis and stating, as a principle of law, .that a defendant does not have the right to be present at a resentencing which merely involves a ministerial task. See, e.g., Holmes v. State, 100 So. 3d 281 (Fla. 3d DCA 2012); Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012) (aff’d but criticized in 143 So. 3d 335 (Fla. 2014)); Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008). Although it may be implicit in those cases that the defendant’s absence from the resentencing was harmless error, the instant…
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Alden Stephenson v. State, 197 So. 3d 1126 (Fla. 3d DCA 2016)…d rule 3.800 motion de novo. Plott v. State, 148 So. 3d 90, 93 (Fla.2014), . Because Stephenson is not entitled to a de novo resentencing hearing, the trial court may enter the resentencing order without the presence of Stephenson. Jordan v. State, 83 So. 3d 910, 911 (Fla. 3d DCA 2012),…
Authorities Cited
- Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006)
- Frizzell v. State, 238 So. 2d 67 (Fla. 1970)
- Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008)