RAY CHARLES THACKER, JR., APPELLANT
v.
THE STATE OF FLORIDA, APPELLEE
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Ray Charles Thacker, Jr. appeals the summary denial of his motion for relief challenging a resentencing that occurred without his presence. The court reversed, holding that a defendant has a constitutional right to be present at sentencing, even when the court claims it is merely correcting a clerical error regarding sentencing credits.
A defendant has a constitutional right to be present at sentencing in felony cases, and this right cannot be waived by the court's characterization of the proceeding as a nunc pro tunc correction of clerical error when the new sentence adds substantial prison time (603 additional days) to the original sentence.
“Sentencing is a critical step in the criminal proceeding, and in felonies it is necessary that the defendant be present and if insolvent he is entitled to a court-appointed counsel.”
Establishes the constitutional requirement of the defendant's presence at sentencing in felony cases.
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Join FLexlaw to unlock all legal intelligenceIn March 1963, Thacker was convicted of assault with intent to commit armed robbery and sentenced to 6 months to 5 years. After escaping in April 1964…
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This is an appeal from a summary denial of the defendant’s motion for relief brought pursuant to Criminal Procedure Rule Number One, F.S.A. Chapter 924, Appendix.
In March, 1963, the defendant was convicted on the charge of assault with intent to commit armed robbery and sentenced to a term of six months to five years. (Case No. 63-1881).
On April 8, 1964, the defendant escaped from the Division of Corrections and on October 26, 1964, he was arrested and charged with four counts of forgery and uttering a forged instrument and one count of breaking and entering a building with the intent to commit a felony.
On January 12, 1965, the defendant, who was represented by counsel, changed his plea to guilty and was thereafter adjudged guilty and sentenced on each count for a term of “seven (7) years, sentence to run concurrently with the sentence imposed in Case No. 63-1881 by this court and credit to be given for time spent in the Dade County Jail and State Penitentiary prior *203to sentencing, to-wit: six hundred eighty-one (681) days.”
On January 28, 1965, the Division of Corrections notified the trial judge that their records show that the amount of credit given in the above cases was incorrect. It was their belief that the defendant should receive credit only from the time of his arrest on the current charges, October 26, 1964, to the date of sentencing, January 12, 1964, which amounted to seventy-eight days.
Thus, on February 3, 1965, the court vacated the sentences and resentenced the defendant on each count to an identical seven year term to run concurrently with the sentence imposed in case No. 63-1881 with a credit for time spent in the Dade County Jail prior to sentencing of seventy-eight (78) days.
The defendant alleges that he was not present at the time of resentencing and that this is a denial of due process of law.
It can not be ascertained from the record whether or not the defendant was present at the time of resentencing. It appears by implication that the defendant was present as the printed form upon which these sentences are transcribed contain a question which is to be propounded to the defendant and also a routine answer. However, it appears that the state has accepted as a fact that the defendant was not present and we will, therefore, consider the defendant’s allegation concerning his absence as true.
Sentencing is a critical step in the criminal proceeding, and in felonies it is necessary that the defendant be present and if insolvent he is entitled to a court-appointed counsel.1
The state contends that the court’s action in vacating the original sentences and resentencing the defendant was in the nature of an order nunc pro tunc which may be made in the absence of the defendant. However, we do not have here a mere clerical error or mistake. The new sentences add’ six hundred and three days of imprisonment over that originally imposed.
For the reasons stated above, the order denying relief from the Rule One is reversed with directions that the court grant the motion, set aside the sentence, and bring the defendant before the court for resen-tencing.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Quarterman v. State, 506 So. 2d 50 (Fla. 2d DCA 1987)…2, 1986. A sentence of fifteen years was imposed on that day in defendant’s absence. Sentencing is a critical step in a criminal proceeding and the defendant must be present. (Waiver is recognized only in regard to misdemeanors.) Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966); Fla.R.Crim.P. 3.180. While Rule 3.180(b) makes provision for a trial to proceed to verdict if a defendant voluntarily absents himself after having been present at the beginning of the proceedings, it makes no such provision in re…
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Wagner v. State, 519 So. 2d 751 (Fla. 4th DCA 1988)…e imposition of sentence. Our courts have consistently required defendant’s presence at resentencings, recognizing that sentencing is a critical stage of a criminal proceeding. See, e.g., State v. Scott, 439 So. 2d 219 (Fla.1983); Thacker v. State, 185 So. 2d 202 (Fla. 3d DCA 1966). See also Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983). Rule 3.180(b) of the Florida Rules of Criminal Procedure provides for the completion of a trial and rendering of a verdict where the defendant has absconded during a…
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Cleon Donald Walker v. State, 284 So. 2d 415 (Fla. 2d DCA 1972)…ppellant being present. Such new sentence shall give credit for time already served under the sentence in the aforesaid July 14 order. Rehearing is, therefore, granted. MANN, C. J., and PIERCE, (Ret.), J., concur. . Thacker v. State, Fla.App.1966, 185 So. 2d 202.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 29 Fla. 543 (Fla. 1892)
- Evans v. State, 163 So. 2d 520 (Fla. 2d DCA 1964)
- Summeralls v. State, 37 Fla. 162 (Fla. 1896)
- Reader v. State, 168 So. 2d 557 (Fla. 2d DCA 1964)