KERN R. DAVIS, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Jack S. Cox, Judge; L.T. Case No.
Haughwout, Public Defender, and Paul Edward Petillo,
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach,
second time, this case is before us on a claim that the
sentence imposed is illegal. We reverse a second time because
we agree with the appellant, Kern R. Davis, that the trial
court, on remand, did not resentence him with the full
panoply of due process.
Background and Trial Court Proceedings
1994, Davis was convicted after trial of robbery with a
deadly weapon and armed carjacking. At the initial
sentencing, he was sentenced as a habitual violent felony
offender to life in prison with a minimum mandatory of
fifteen years on each count. In 2013, Davis filed a motion to
correct illegal sentences, contending his prior robbery
conviction in Dade County, which was the sole qualifying
offense for his habitual violent felony offender status, was
reversed on appeal. The trial court denied the motion. We
reversed the trial court and remanded the case for
resentencing with the following direction: "Although
[Davis] does not qualify as an [habitual violent felony
offender], he may qualify as a habitual felony offender and
those sanctions may be sought on remand." Davis v.
State, 164 So.3d 96 (Fla. 4th DCA 2015).
remand, the State filed its notice of intent to seek an
enhanced penalty for Davis as a habitual felony offender.
Davis filed a sentencing memorandum, listing as mitigating
factors his strong family support, the fact that his previous
robbery conviction in Dade County was vacated based on false
testimony, the classes that he has taken while incarcerated,
the fact that he was physically and sexually abused by family
members, his advanced age with a decreased chance of
recidivism, and evidence of rehabilitation through programs
resentencing hearing was held by a successor judge because
the judge who tried the case and imposed the sentence
twenty-two years earlier was no longer on the bench. At the
beginning of the hearing, the trial court stated that it read
everything that was submitted to it, including Davis's
sentencing memorandum and the attached letters from family
and friends and certificates of completion from the programs
Davis had completed while incarcerated. The trial court also
reviewed a reconstructed scoresheet the parties agreed was
accurate. Eventually, the parties stipulated that Davis
qualified for sentencing as a habitual felony offender. The
trial court permitted both parties to present whatever
evidence and arguments either desired. However, as discussed
more fully below, the statements of the trial court in
pronouncing sentence indicated it was not inclined to
"revisit" the sentence imposed by the judge who
tried the case or consider the new evidence regarding
Davis's behavior while in prison. The trial court
determined Davis to be a habitual felony offender and
sentenced him again to life in prison with the mandatory
minimums. Davis gave notice of appeal.
Davis claims a denial of due process, the standard of review
for a constitutional claim is de novo. See A.B.
v. Fla. Dep't of Children & Family Servs., 901
So.2d 324, 326 (Fla. 3d DCA 2005) (citing G.C. v.
Dep't of Children & Families, 791 So.2d 17, 19
(Fla. 5th DCA 2001)) ("The standard of review for the
mother's constitutional claim is de novo as this issue
involves a question of law.").
parties agree that when a sentence has been reversed as
illegal and the case is remanded for resentencing, a
defendant is entitled to the full panoply of due process
considerations on resentencing. State v. Fleming, 61
So.3d 399, 406 (Fla. 2011) (quoting State v. Scott,
439 So.2d 219, 220 (Fla. 1983)). What the parties disagree
about is whether Davis received the full panoply of due
process considerations when resentenced upon remand. Davis
contends the trial court interpreted our remand instructions
to simply direct the trial court to determine whether Davis
was eligible for sentencing as a habitual offender, in which
case, the previously imposed sentence would stand. The State
contends the trial court fully understood it was to conduct a
de novo sentencing, and did so, but exercised its
discretion to impose the same sentence imposed by the judge
who tried the case. The State further argues that on
resentencing after an erroneous habitualization, the trial
court may impose a sentence to achieve the original
sentencing intent, but not exceed it, citing to Dixon v.
State, 41 So.3d 990, 991 (Fla. 4th DCA 2010), and
Suarez v. State, 974 So.2d 451, 453 (Fla. 3d DCA
Galindez v. State, 955 So.2d 517 (Fla. 2007), in a
specially concurring opinion, Justice Cantero explained the