AL L. BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Burgess appeals from an order denying his request for a resentencing hearing after the trial court struck his habitual violent felony offender designations on life felonies. The appellate court held that Burgess is entitled to be present and represented by counsel at resentencing because judicial discretion is involved, and reversed the trial court's denial of this right.
A defendant is entitled to be present and represented by counsel at resentencing unless the resentencing involves only a ministerial act. Because the trial court must reconsider sentences under the sentencing laws in effect at the time of the offenses and has discretion to impose departure sentences, resentencing is not ministerial and requires the defendant's presence.
[1] A defendant is entitled to be present and represented by counsel at any resentencing proceeding arising from a motion to correct an illegal sentence, unless the resentenc…
[2] Resentencing after the striking of a habitual violent felony offender designation is not a ministerial act when the trial court must reconsider sentences under the laws i…
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Join FLexlaw to unlock all legal intelligence“a defendant is entitled to be present and represented by counsel at any resentencing proceeding from a motion to correct illegal sentence unless resentencing involves only a ministerial act”
Establishes the core legal rule governing defendant's rights at resentencing hearings
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Join FLexlaw to unlock all legal intelligenceBurgess was convicted of armed kidnapping and armed sexual battery and designated as a habitual violent felony offender on those counts. The trial cou…
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Appellant appeals from an order of the trial court that denied in part his motion to correct illegal sentence. He contends that he should have been granted a resentencing hearing at which he would be present and represented by counsel. The trial court’s order granted the motion insofar as it struck Appellant’s designation as a habitual violent felony offender for the life felonies of armed kidnapping and armed sexual battery, but denied Appellant’s request for resentencing “without prejudice.”1 The latter ruling was reversible error, as a defendant is entitled to be present and represented by counsel at any resentencing proceeding from a motion to correct illegal sentence unless resentenc-ing involves only a ministerial act. Jordan v. State, 143 So.3d 335, 338 (Fla.2014).
In this case, once Appellant’s habitual violent felony offender designations were struck, the trial court was required to reconsider Appellant’s sentences under the sentencing laws in effect at the time of his offenses. Thompson v. State, 987 So.2d 727, 728 (Fla. 4th DCA 2008); Lewis v. State, 764 So.2d 874 (Fla. 4th DCA 2000). A resentencing at which the trial judge has judicial discretion is not a ministerial act, and thus Appellant’s presence at resentencing here is required. Jordan, 143 So.3d at 339-40 (resentencing after motion to correct based on improper imposition of habitual violent felony offender designation not ministerial because trial court has discretion under sentencing guidelines applicable at the time of the defendant’s offense).
Therefore, we vacate the trial court’s order to the extent it denies Appellant’s request for resentencing, and remand for further proceedings consistent with this opinion. On remand, the trial court is free to impose departure sentences if valid grounds for departure are proven. Thompson, 987 So.2d at 729.
Order vacated in part and remanded for farther proceedings.
GROSS, CONNER and FORST, JJ., concur.
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Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)…ict courts have found that a resentencing in which a trial judge has discretion as to the new sentence is not a ministerial act and thus requires the defendant’s presence.” Jordan, 143 So. 3d at 339 (emphasis in original); see also Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th DCA 2016) (“A resen-tencing at which the trial judge has judicial discretion is not a ministerial act, and thus Appellant’s presence at resentencing here is required.”). The proceedings in the trial court on remand from this Court’s…
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Ricarlo A. Betty v. State, 233 So. 3d 1149 (Fla. 4th DCA 2017)…o. 2d 728, 729-30 (Fla. 5th DCA 2001)). It is further well established that “a defendant is entitled to be present and represented by counsel at [a] resentencing proceeding ... unless re-sentencing involves only a ministerial act.” Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th DCA 2016) (citing Jordan, 143 So. 3d at 338). Furthermore, “[a] resentencing at which the trial judge has judicial discretion is not a ministerial act.” Id. (citing Jordan, 143 So. 3d at 339-40). In this case, it was undisputed that…
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Andrews v. State, 264 So. 3d 303 (Fla. 5th DCA 2019)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jordan v. State, 143 So. 3d 335 (Fla. 2014)
- Austin v. State, 756 So. 2d 1080 (Fla. 4th DCA 2000)
- Lewis v. State, 764 So. 2d 874 (Fla. 4th DCA 2000)
- Cook v. State, 866 So. 2d 1291 (Fla. 4th DCA 2004)
- Thompson v. State, 987 So. 2d 727 (Fla. 4th DCA 2008)
- Hankerson v. State, 765 So. 2d 982 (Fla. 4th DCA 2000)