FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Thomas P.
Neymotin, Regional Counsel, Second District, and Joseph Thye
Sexton, Assistant Regional Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Fort Myers, for
Moody, Attorney General, Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona Beach, for Appellee.
KHOUZAM, CHIEF JUDGE.
Leon Heatley, a/k/a Daniel Leon Heatly, appeals his sentences
entered on remand from Heatly v. State, 192 So.3d
584 (Fla. 2d DCA 2016). Because the circuit court erred in
declining to consider Heatley's presentence investigation
report (PSI) at a full de novo resentencing hearing, we
reverse and remand. We affirm without comment as to
Heatley's remaining claim.
was convicted of first-degree arson and burglary of an
unoccupied dwelling. On the arson count, he was sentenced to
life in prison as a habitual felony offender (HFO) with a
thirty-year mandatory minimum term as a prison releasee
reoffender (PRR). On the burglary count, he was sentenced to
a concurrent thirty years in prison with a fifteen-year
mandatory minimum term as a PRR. This court affirmed
Heatley's convictions and sentences on direct appeal.
Heatly v. State, 177 So.3d 615 (Fla. 2d DCA 2015)
filed a petition alleging ineffective assistance of appellate
counsel. Heatly, 192 So.3d at 584. This court
granted his petition in part, reversed his sentences, and
remanded for resentencing before a different judge.
Id. at 585. On remand, a de novo resentencing
hearing was held. The court again found that Heatley
qualified as a PRR and a HFO. Heatley was sentenced to the
same sentences that he originally received, and he filed the
the pendency of this appeal, Heatley filed two motions to
correct sentencing error pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2). In his first such motion, Heatley
correctly pointed out that it was error to resentence him as
a HFO without either reviewing his original PSI or ordering a
new one. The court granted Heatley's motion and held a
new resentencing hearing. However, at that hearing the court
only considered the PSI and declined to conduct a full de
novo resentencing, instead relying on the State's
evidence from the previous hearing. Heatley then filed a
second rule 3.800(b)(2) motion, arguing that he was entitled
to a full de novo resentencing hearing at which his PSI would
be considered. The court erroneously denied this motion.
trial court's failure to consider a mandatory presentence
investigation report before sentencing a defendant is a
sentencing error that can be preserved via the filing of a
rule 3.800(b) motion." Albarracin v. State, 112
So.3d 574, 574 n.1 (Fla. 4th DCA 2013); see also White v.
State, 271 So.3d 1023, 1027 (Fla. 4th DCA 2019) (same).
Here, Heatley was entitled to have the court consider his PSI
at resentencing pursuant to section 775.084(3)(a)(1), Florida
Statutes (2018), which provides:
(3)(a) In a separate proceeding, the court shall determine if
the defendant is a habitual felony offender or a habitual
violent felony offender. The procedure shall be as
1. The court shall obtain and consider a presentence
investigation prior to the imposition of a sentence as a
habitual felony offender or a habitual violent felony
the court has discretion to impose a new sentence and is not
merely performing a ministerial act, a defendant is entitled
to a full de novo resentencing hearing. Marana v.
State, 226 So.3d 329, 329 (Fla. 1st DCA 2017).
Resentencing must proceed as an entirely new proceeding where
all issues bearing on the proper sentence must be considered
de novo and the defendant is entitled to the full array of
due process rights. State v. Collins, 985 So.2d 985,
989 (Fla. 2008). Resentencing is not just a reweighing of
existing evidence; rather, both sides may present additional
evidence. Id. Indeed, "[i]n Florida, the State
is required to produce evidence during the new ...