final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 02-4050, Victoria R. Brennan and Nushin G. Sayfie,
Vladimir Gonzalez, in proper person.
Jo Bondi, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
EMAS, LOGUE and SCALES, JJ.
MOTION TO ENFORCE MANDATE
Gonzalez v. State, 194 So.3d 380 (Fla. 3d DCA 2016),
Gonzalez appealed from an order denying his pro se motion to
correct sentence pursuant to Florida Rule of Criminal
Procedure 3.800(a). We held that the sentence imposed upon
Gonzalez (following a probation violation hearing) failed to
properly award Gonzalez credit for prison time he had
previously served on his probationary split sentence.
However, we also held that an entirely new sentencing
proceeding was unnecessary; instead, and in light of the
clear and unequivocal intent of the trial court as
articulated at the sentencing hearing, we remanded this cause
to the trial court with directions to "restructure the
sentence to reflect the trial court's articulated
sentencing goal, while properly awarding the prison credit to
which Gonzalez is entitled." Id. at 381.
opinion did not expressly require that Gonzalez be present
and represented by counsel at the resentencing. Following our
mandate, the original sentencing judge, without Gonzalez or
his counsel being notified or present, entered a resentencing
order on June 3, 2016, sentencing Gonzalez to twenty-five
years in prison. The record contains no transcript of any
proceeding at which this was accomplished, and we do not know
the method by which the original sentencing judge determined
that this amended sentence complied with our mandate. What we
do know is that, because neither Gonzalez nor his counsel was
present at the resentencing, Gonzalez was not aware that the
resentencing was taking place and was not aware of the entry
of this order until after the time for filing a direct appeal
had expired. Gonzalez filed this motion to enforce mandate
contending, inter alia, that he had a right to be present and
represented by counsel.
State contends that our opinion, and the mandate which
followed, merely required the trial court to undertake a
ministerial task and that, therefore, Gonzalez did not have a
right to be present for the resentencing. This statement of
the law, however, is not precisely correct. Instead, and as
the Florida Supreme Court has held, a "defendant has a
right to be present and to be represented by counsel at any
resentencing proceeding from a rule 3.800(a) motion, "
but a "violation of the right to be present is subject
to a harmless error analysis." Jordan v. State,
143 So.3d 335, 338 (Fla. 2014).
distinction is important, because the rule is a recognition
of the basic constitutional principle that "a defendant
has the right to be present in the courtroom at every
critical stage of the proceeding." Jackson v.
State, 767 So.2d 1156, 1159 (Fla. 2000); Fla. R. Crim.
P. 3.180(a)(9)(providing that "the defendant shall be
present. . . at the pronouncement of judgment and the
imposition of sentence.") The "ministerial
act" is simply a recognized exception to that rule, and
the failure to ensure a defendant's presence at
resentencing, even if for a ministerial act, requires
"the state to show beyond a reasonable doubt, that the
error (absence) was not prejudicial." Jordan,
143 So.3d at 339 (quoting Garcia v. State, 492 So.2d
360, 264 (Fla. 1986)).
the State cannot demonstrate that the error was harmless.
Indeed, the record establishes that the sentence imposed
following remand was erroneous: As discussed above, following
our mandate, the original sentencing judge, on June 3, 2016
vacated the sentence and imposed a sentence of twenty-five
years. It does not appear that this newly-imposed sentence
comported with our directive that the trial court
"restructure the sentence to reflect the trial
court's articulated sentencing goal [of fourteen years
and five months], while properly awarding the prison credit
to which Gonzalez is entitled." Gonzalez, 194
So.3d at 381.
fact, after the original sentencing judge imposed this
twenty-five year sentence on remand, the Florida Department
of Corrections sent a letter to the trial court, asking for
clarification of this new sentence. By that time, a successor
judge had been assigned to the division and, after reviewing
the matter, entered an order on November 2, 2016 entitled
"Order Clarifying and Resentencing Defendant." In
that order, the successor judge acknowledged that the
twenty-five year sentence imposed following remand
"would result in a net sentence of at least three
(3) years longer than the Trial Court had unequivocally
articulated on the record." (Emphasis added.)
Nevertheless, the successor judge reduced the sentence by
only one and one-half years, to twenty-three years and six
months. As with the first resentencing order
following remand, there is no record evidence that Gonzalez
and his counsel knew of, or were present for, the proceeding
at which the successor judge entered the clarified
resentencing order. The presence and participation of
Gonzalez and his counsel at either of these two resentencing
proceedings certainly would have increased the likelihood
that the resentencing order complied with our prior opinion
therefore grant the motion to enforce mandate, vacate the
clarified resentencing order entered on November 2, 2016 (as
well as the resentencing order of June 3, 2016) and remand
for entry of a sentence that properly grants all previous
jail and prison credit, and otherwise complies with the
opinion and mandate previously issued in this ...