WARREN L. OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Warren Oliver appeals a resentencing order after the trial court granted his motion to correct an illegal sentence. The Fifth District Court of Appeal reversed because the trial court failed to appoint or renew counsel for Oliver at the resentencing hearing, violating his due process right to counsel.
The trial court violated Oliver's due process right to counsel because resentencing was not a ministerial act and Oliver was entitled to counsel to be heard on sentencing issues. The resentencing order is therefore reversed and remanded.
[1] A defendant has a right to counsel at a resentencing hearing when the resentencing is not a purely ministerial act.
[2] A trial court must appoint or renew an offer of counsel to a defendant facing a resentencing hearing that is not ministerial.
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“Because Oliver's resentencing was not a ministerial act, he had a right to counsel.”
Establishes the legal principle that resentencing proceedings require appointed counsel when the court retains discretionary authority
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Join FLexlaw to unlock all legal intelligenceOliver was convicted in 1999 of two counts of sexual battery, one count of aggravated battery, and one count of kidnapping. He was sentenced as a habi…
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Warren Oliver appeals a resentencing order entered by the trial court after it granted Oliver’s motion to correct sentence. We reverse because the trial court failed to appoint or renew an offer of counsel to represent Oliver at the resentencing hearing.
Oliver was convicted in 1999 of two counts of sexual battery (Counts I and II), one count of aggravated battery (Count III), and one count of kidnapping (Count IV). He was sentenced as a habitual vio*211lent felony offender to lengthy concurrent incarcerative sentences on Counts I, II, and III. On Count IV, Oliver was sentenced as a habitual violent felony offender to a consecutive sentence of sex offender probation for life. On direct appeal, Oliver’s convictions were per curiam affirmed. Oliver v. State, 781 So.2d 1101 (Fla. 5th DCA 2001).
In a subsequent motion to correct illegal sentence, Oliver alleged that he could not be sentenced to a consecutive sentence op Count .IV. The State agreed. See, e.g., West v. State, 790 So.2d 513, 514-15 (Fla. 5th DCA 2001) (holding that defendant’s habitual offender sentence of ten years in prison on one count and consecutive five-year probationary term on separate count was illegal because consecutive habitual offender sentences for two offenses are improper where offenses arise out of single eiiminal episode); Benjamin v. State, 667 So.2d 437, 437 (Fla. 2d DCA 1996) (“[T]he prohibition against consecutive habitual offender sentences applies to a sentence of imprisonment on one count, followed by a term of probation on another count arising from a single criminal episode.”).
At the resentencing hearing, the trial court failed to appoint or renew an offer of counsel for Oliver and ordered that the lifetime probationary sentence on Count IV run concurrently with the prison sentences imposed on Counts I through III.1 Because Oliver’s resentencing was not a ministerial act, he had a right to counsel. See Frison v. State, 76 So.3d 1103, 1105 (Fla. 5th DCA 2011) (holding that, after trial court granted motion to correct illegal sentence, appellant had due process right to be represented by counsel at resentenc-ing hearing because resentencing was not merely ministerial act, given that trial court had discretion to sentence appellant to up to. forty years, and appellant was entitled to be heard on issues of community control and life probation).
REVERSED and REMANDED.
SAWAYA and WALLIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- West v. State, 790 So. 2d 513 (Fla. 5th DCA 2001)
- COX v. State, 468 So. 2d 437 (Fla. 2d DCA 1985)
- Frison v. State, 76 So. 3d 1103 (Fla. 5th DCA 2011)
- Benjamin v. State, 667 So. 2d 437 (Fla. 2d DCA 1996)
- Mitchell v. State, 654 So. 2d 265 (Fla. 2d DCA 1995)