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Davis v. State

Florida Court of Appeals, Fourth District

September 6, 2017

KERN R. DAVIS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack S. Cox, Judge; L.T. Case No. 501994CF004965AXXXMB.

          Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

          Conner, J.

         For a 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.

         Factual Background and Trial Court Proceedings

         In 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).

         On 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 while incarcerated.

         A 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.

         Appellate Analysis

         Because 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.").

         Both 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 2008).

         In Galindez v. State, 955 So.2d 517 (Fla. 2007), in a specially concurring opinion, Justice Cantero explained the ...


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