Opinion
No. 3D12-1839 Lower Tribunal No. 97-12743
06-19-2013
Excellus O. Hyland, Appellant, v. The State of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee. Before WELLS, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
ON CONFESSION OF ERROR
WELLS, Chief Judge.
Excellus O. Hyland appeals from an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The defendant asserted that his sentence should be vacated because the State erroneously included subsequent crimes as prior offenses in calculating his scoresheet. The State conceded the defendant was correct as to the miscalculations, but argued the circumstances surrounding his conviction were aggravating factors that could be taken into account to impose an upward departure at resentencing. Rather than conduct a new sentencing hearing, the trial court entered the order on appeal, accepting the State's position, and denying defendant's Rule 3.800 motion. Here, the defendant argues the trial court erred in resentencing him without conducting a full sentencing hearing with him present.
We agree. Based on the State's proper confession of error, we vacate the sentence imposed and remand for resentencing. As the defendant argues, he had the right to be present at his resentencing. See State v. Scott, 439 So. 2d 219, 220 (Fla. 1983) ("[O]nce the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach."); Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006) ("A defendant is constitutionally entitled to be present at all fundamental stages of a criminal proceeding, including sentencing."); Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA 2001) (reversing order on resentencing and remanding with instructions to conduct a sentencing hearing with defendant present); accord De La Rosa v. State, 38 So. 3d 238, 239 (Fla. 3d DCA 2010). The recognized "exception in resentencing cases where only the 'ministerial act' of sentence correction is required," Orta, 919 So. 2d 604, being inapplicable to the instant case, we vacate the sentence imposed and remand for resentencing with the defendant present or represented by counsel.