RICHARD ANDREWS
v.
STATE OF FLORIDA
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When a trial court grants relief on a rule 3.800(a) motion that alters the sentencing scoresheet and requires the exercise of judicial discretion in imposing a new sentence, a full de novo resentencing hearing with the defendant present and represented by counsel is mandatory.
[1] When a trial court grants relief on a rule 3.800(a) motion that alters the sentencing scoresheet and requires judicial discretion in imposing a new sentence, a full de no…
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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 unless the resentencing involves only a ministerial act.”
Court's statement of the legal standard for resentencing proceedings
Richard Andrews filed a rule 3.800(a) motion challenging his habitual felony offender designation on a burglary count. The trial court granted relief …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
RICHARD ANDREWS,
Appellant,
v. Case No. 5D18-2759
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed February 1, 2019
3.800 Appeal from the Circuit Court for Brevard County, Robin C. Lemonidis, Judge.
Richard Andrews, Miami, pro se.
Ashley B. Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Richard Andrews (the defendant) appeals the trial court’s order granting in part, and denying in part, his motion to correct illegal sentence filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. On appeal, the defendant argues that the trial court erred by granting relief but failing to conduct a resentencing proceeding. We agree and reverse.
2 The defendant filed the present rule 3.800(a) motion in which he asserted two grounds for relief. In ground two, the defendant challenged the habitual felony offender designation as to count one, burglary of a dwelling. The trial court denied ground one but granted relief on ground two. Without conducting a resentencing hearing, the trial court struck the habitual felony offender designation as to count one and reimposed a life term. A defendant is entitled to be present and represented by counsel at any resentencing proceeding unless the resentencing involves only a ministerial act. See Thompson v. State, 208 So. 3d 1183, 1187 (Fla. 3d DCA 2017). The relief granted by the trial court altered the total sentence points on the defendant’s scoresheet and, under the sentencing guidelines in effect at the time of the offense, the court had discretion as to the new sentence it imposed upon the defendant. Thus, resentencing the defendant to a life term on count one did not involve a purely ministerial act. See Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th DCA 2016). Accordingly, the trial court was required to hold a full, de novo resentencing hearing before imposing a new sentence on count one, and the trial court’s failure to hold such a hearing was error. See Branton v. State, 187 So. 3d 382 (Fla. 5th DCA 2016). Accordingly, we reverse and remand to the trial court for a formal resentencing hearing wherein the defendant is represented by counsel.
REVERSED and REMANDED.
COHEN, LAMBERT, and GROSSHANS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Andrews v. State (Fla. 5th DCA 2019)
Authorities Cited
- Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)
- Branton v. State, 187 So. 3d 382 (Fla. 5th DCA 2016)
- Burgess v. State, 182 So. 3d 841 (Fla. 4th DCA 2016)
- Justo Manuel Garcia v. Lirda L. Rivera, 208 So. 3d 1183 (Fla. 3d DCA 2017)