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Wilson v. State

Florida Court of Appeals, Fifth District

July 12, 2019

MARIO JEROME WILSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Wayne C. Wooton, Judge.

          James S. Purdy, Public Defender, David M. Dixon and Edward J. Weiss, Assistant Public Defenders, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

          SASSO, J.

         Mario Jerome Wilson ("Appellant") appeals from the judgment and sentence entered after this Court remanded this case for resentencing. He asserts the trial court erred in denying his request for a de novo resentencing hearing. We agree and reverse.

         After being charged with seven criminal counts, Appellant entered into a plea agreement pursuant to which his sentence would be capped at twenty-five years. On July 26, 2013, after holding a sentencing hearing at which six defense witnesses testified, the trial court sentenced Appellant to the following concurrent terms: five years in prison on count two, twenty years in prison on count three followed by ten years of probation, fifteen years in prison on count four, five years in prison on count six, and five years in prison on count seven.

         Thereafter, Appellant filed a motion for postconviction relief, arguing that the sentence imposed by the trial court did not conform to the plea agreement, and seeking to withdraw his plea. The trial court declined to allow Appellant to withdraw his plea. Instead, it amended Appellant's sentence by reducing the probationary period on count three from ten years to five years, consistent with the agreed upon twenty-five-year cap.

         Appellant appealed to this Court. In Wilson v. State, 224 So.3d 815 (Fla. 5th DCA 2017), this Court affirmed the trial court's decision not to allow Appellant to withdraw his plea. However, concluding that Appellant had the right to be present during imposition of the new sentence, this Court remanded "with instructions that the court resentence Appellant while he is present." Wilson, 224 So.3d at 815.

         Appellant was present at the subsequent resentencing hearing wherein the trial court declined Appellant's request to testify and present witnesses, noting that it had already conducted "an extensive sentencing hearing where evidence was presented." The trial court then sentenced Appellant to the same concurrent prison terms originally imposed but without any probation. Appellant argues that the resentencing hearing was a de novo proceeding and therefore it was error for the court to deny his request to present witnesses.

         As confirmed by the Florida Supreme Court and codified in the Florida Rules of Criminal Procedure, a criminal defendant has the right to be present in the courtroom at "every critical stage in the proceedings," including sentencing. See Jackson v. State, 767 So.2d 1156, 1159 (Fla. 2000) ("Indeed, one of a criminal defendant's most basic constitutional rights is the right to be present in the courtroom at every critical stage in the proceedings." (citing Illinois v. Allen, 397 U.S. 337, 338 (1970))); see also Fla. R. Crim. P. 3.180(a)(9) (specifying that criminal defendant shall be present at pronouncement of judgment and imposition of sentence). This right has been extended to resentencing hearings. Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) (citations omitted).

         Of course, guarding this right requires more than merely ensuring a defendant's physical attendance. Instead, "presence" includes both physical attendance and "a meaningful opportunity to be heard through counsel on the issues being discussed." Fla. R. Crim. P. 3.180(b). Further, the Florida Supreme Court has clarified that when a defendant is resentenced, "the full panoply of due process considerations attach." State v. Fleming, 61 So.3d 399, 406 (Fla. 2011) (citations omitted). This includes the right to present evidence relevant to the sentence. See Branton v. State, 187 So.3d 382, 385 (Fla. 5th DCA 2016) (noting that defendant "was entitled to produce additional evidence at [the] hearing not presented at his earlier sentencing . . . and the resentencing court was not limited to the evidence presented, or not presented, at the original sentencing").

         The State does not dispute these general principles. It argues, inter alia, the trial court did not err here because Appellant did not proffer the testimony he sought to introduce and because the trial court actually conducted a de novo proceeding by considering argument from defense counsel. We disagree. The trial court made clear that it would not permit Appellant to present any evidence at all. As such, even if the trial court relied on its recollection of evidence presented at the previous resentencing hearing, it did not conduct a de novo proceeding. Mann v. State, 453 So.2d 784, 786 (Fla. 1984) (recognizing that where remand directs new sentencing proceeding, both sides may present additional evidence). This error was not harmless. See Branton, 187 So.3d at 385 (holding that lower court violated defendant's due process rights by refusing additional evidence at resentencing not presented at earlier sentencing). Furthermore, while a proffer is required in certain circumstances to preserve admissibility challenges, it is not necessary to challenge the blanket exclusion of the right to present testimony. See, e.g., Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984) (remanding for resentencing where trial court refused to listen to tape recording of defendant's witnesses at sentencing or allow defense counsel to summarize recording).

         For the reasons stated above, we again vacate the sentence entered by the trial court and remand for ...


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