from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Rothschild, Judge; L.T. Case No.
Webb, Coral Gables, for appellant.
Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
reverse a sentence imposed on a resentencing because the
circuit court refused to consider evidence relevant to a
downward departure that arose in the years after the original
sentence was imposed.
2003, appellant was charged by information with one count of
sheltering an unmarried minor and four counts of lewd or
lascivious battery on a person 12 years of age or older but
less than 16 years of age.
trial court rejected appellants request for a downward
departure and instead sentenced appellant to concurrent
50-year sentences on counts 1-4, followed by 20 years of sex
offender probation. Appellant received 936 days of jail
credit for time served. The trial court sentenced appellant
to time served on count 5. We affirmed appellants judgment
and sentence. See Spires v. State, 987
So.2d 1227 (Fla. 4th DCA 2008).
2016, appellant moved to correct illegal sentence pursuant to
Florida Rule of Criminal Procedure 3.800(a), arguing that his
sentence exceeded the 15-year statutory maximum for the
crimes. The trial court granted appellants motion and
ordered a new sentencing hearing, pursuant to Rigueiro v.
State, 132 So.3d 853 (Fla. 4th DCA 2013).
to the resentencing hearing, appellant moved for a downward
departure, with grounds similar to those raised at the
initial sentencing hearing. In addition, appellant raised
matters arising after his original sentencing, including a
2018 psychosexual evaluation that found his risk of sexual
recidivism to be low.
different from the original sentencing judge presided over
the resentencing hearing. The judge stated that his job on
resentencing was limited to determining the intent of the
original sentencing judge and crafting a sentence that
comported with such intent. Defense counsel objected to this
narrow view of a Rigueiro resentencing, pointing out
that grounds existed for a downward departure that did not
exist over a decade before at the original sentencing.
judge vacated appellants original sentence and sentenced
appellant to 27 years on Counts 1 and 2, to run concurrently,
and 27 years on counts 3 and 4 to run concurrently with each
other, but consecutive to counts 1 and 2, for a total
sentence of 54 years. The court emphasized that it was taking
no position regarding the downward departure motion.
circuit court erred by not treating the Rigueiro
sentencing as a de novo proceeding; the court should have
received evidence relevant to a downward departure and ruled
on appellants motion.
"[W]here a sentence has been reversed or vacated, the
resentencings in all criminal proceedings ... are de novo in
nature." State v. Fleming,61 So.3d 399, 406
(Fla. 2011). "This means that when a defendant is
resentenced, the fully panoply of due process considerations
attach. " Id. (quoting State v.
Scott,439 So.2d 219, 220 (Fla. 1983)). "This
includes the right to present evidence ...