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Betty v. State

Florida Court of Appeals, Fourth District

December 20, 2017

RICARLO A. BETTY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 56-2007-CF-000147A.

          Ricarlo A. Betty, Arcadia, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

          Conner, J.

         Ricardo A. Betty ("Appellant") appeals the order denying his motion to set a hearing date for the de novo sentencing hearing granted as post-conviction relief. Because the original sentencing judge summarily and improperly found a de novo sentencing hearing "unnecessary" after a different trial court judge ruled such relief was warranted, we reverse and remand for a new sentencing hearing before a different judge.

         Background

         In 2008, Appellant was convicted after trial of two counts of robbery with a deadly weapon while masked and was sentenced to life in prison on each count. Appellant's judgment and sentence were affirmed on direct appeal. Betty v. State, 22 So.3d 558 (Fla. 4th DCA 2009).

         In 2011, Appellant moved for post-conviction relief raising several grounds. The motion was heard by a judge who did not preside over the trial and sentencing. The trial court denied post-conviction relief except for one ground, in which Appellant asserted ineffective assistance of counsel for failure to advise Appellant of his youthful offender eligibility and argue for a youthful offender sentence. The trial court found sufficient prejudice on that ground to grant Appellant a de novo sentencing hearing in front of the original sentencing judge to enable that judge to consider whether Appellant should be classified and sentenced as a youthful offender. The written order granting relief stated:

The parties may contact the sentencing judge for hearing time at a mutually convenient time and/or file an appeal within thirty days.

(emphasis added).

         Appellant appealed the denial of post-conviction relief on the same grounds for which relief was not granted, before seeking a new sentencing hearing. This Court per curiam affirmed the denial as to those grounds. Betty v. State, 138 So.3d 1037 (Fla. 4th DCA 2014).

         After his post-conviction relief appeal was resolved, Appellant filed a pro se motion to set a hearing date for the de novo sentencing hearing granted in the trial court's 2011 order. Appellant's motion for a de novo sentencing was denied without a hearing by the original sentencing court. The order denying the motion stated, without any citation to authority, that the original sentencing court "d[id] not believe" it had jurisdiction to hold a sentencing hearing after Appellant filed the appeal of the post-conviction order. Alternatively, the original sentencing court found that even if it did have jurisdiction, a de novo hearing was "unnecessary, " reasoning that the original sentencing court had presided over Appellant's trial and sentencing and had reviewed the transcripts of both proceedings, and that regardless of any possible youthful offender argument trial counsel could make, the original sentencing court would not have sentenced Appellant as a youthful offender. The original sentencing court noted that Appellant scored 13.9 years in prison with a minimum mandatory of ten years, but that it had imposed two life sentences on Appellant, attaching portions of the sentencing transcript reflecting the sentence. Therefore, the original sentencing court denied Appellant's motion for a de novo resentencing hearing.

         Appellant gave notice of appeal of the order denying a d ...


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