FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Wayne C. Wooton,
S. Purdy, Public Defender, David M. Dixon and Edward J.
Weiss, Assistant Public Defenders, Daytona Beach, for
Moody, Attorney General, Tallahassee, and Allison Leigh
Morris, Assistant Attorney General, Daytona Beach, for
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.
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.
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.
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.
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.
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).
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").
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).
reasons stated above, we again vacate the sentence entered by
the trial court and remand for ...