from the Circuit Court for Sarasota County; Charles E.
L. Dimmig, II, Public Defender, and Maureen E. Surber,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Kelly ONeill,
Assistant Attorney General, Tampa, for Appellee.
convicted Donald Lee Thomas of selling cocaine within 1000
feet of a public park, a first-degree felony punishable by up
to thirty years imprisonment. See § §
893.13(1)(c)(1), 775.082(3)(b)(1), Florida Statutes (2017).
At the sentencing hearing, the trial court orally pronounced
a term of seven years imprisonment but did not announce that
the offense carries a minimum term of three years
imprisonment. See § 893.13(1)(c)(1). The subsequent
written sentence, however, indicates a three-year minimum
term of imprisonment. After filing a notice of appeal in this
court, Mr. Thomas unsuccessfully moved the trial court to
correct the sentencing error pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2), arguing that the failure to
orally pronounce the three-year minimum term of imprisonment
in his presence was reversible error. We agree and reverse
and remand for resentencing such that the three-year minimum
sentence can be announced in Mr. Thomass presence.
a motion to correct a sentencing error involves a pure issue
of law, our standard of review is de novo." Burks v.
State, 237 So.3d 1060, 1062 (Fla. 3d DCA 2017) (quoting
Brooks v. State, 199 So.3d 974, 976 (Fla. 4th DCA
2016)). Here, there is no question that the trial court was
required to impose a minimum term of three years
imprisonment. See § 893.13(1)(c)(1) (requiring a
trial court to impose a sentence of a "minimum term of
imprisonment of 3 calendar years" when a defendant has
delivered cocaine within 1000 feet of a public park);
State v. Crews, 884 So.2d 1139, 1140 (Fla. 2d DCA
2004) (providing that the plain language of section
893.13(1)(c)(1) requires the trial court to impose a
nondiscretionary minimum term of three calendar years).
issue in this case arises because the trial court did not
announce the mandatory minimum term of three years
imprisonment at sentencing but later added it to the written
sentence outside of Mr. Thomass presence. Mr. Thomas argues
that due process required his presence when the minimum term
was added to his sentence. See Dunbar v.
State, 89 So.3d 901, 907 (Fla. 2012). We agree.
Dunbar, the trial court orally pronounced a life
sentence for robbery with a firearm but neglected to announce
the ten-year mandatory minimum for the offense. 89 So.3d at
903. That same day, the trial court entered a written
sentencing order including the mandatory minimum term.
Id. Our supreme court remanded for resentencing to
impose the mandatory minimum term, reasoning that Mr. Dunbar
"had a due process right to be present when the terms of
his sentence were increased." Id. at 907. The
Dunbar court explained that "a defendant is
guaranteed the right to be present at any stage of [a]
criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the
procedure." Id. (quoting Kentucky v.
Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d
631 (1987)). And because "a sentencing proceeding in
which a sentence is increased is a critical stage of trial at
which the defendants presence would contribute to the
fairness of the procedure, " the court concluded that
Mr. Dunbar was required to be present when the ten-year
mandatory minimum was added to his life sentence.
Id. (quoting Stincer, 482 U.S. at 745, 107
denying the motion to correct sentencing error, the trial
court first explained that it did not err when orally
pronouncing Mr. Thomass sentence because the aggregate
seven-year sentence it pronounced at the sentencing hearing
necessarily included the minimum three-year term of
imprisonment required by section 893.13(1)(c)(1). Attempting
to distinguish Dunbar, the trial court reasoned that
unlike the statute at issue in Dunbar, section
893.13 does not prohibit a defendant from receiving any gain
time during the mandatory portion of his sentence.
See Mobley v. State, 263 So.3d 117, 118
(Fla. 5th DCA 2018) (concluding that the legislature did not
intend to prohibit gain time from being awarded during the
three-year minimum term of imprisonment that section
893.13(1)(c)(1) requires because the statute contains no such
language). The State argues that the practical effect of this
distinction is that unlike the defendant in Dunbar,
Mr. Thomass aggregate sentence was not increased when the
trial court added the three-year minimum term of imprisonment
on Mr. Thomass written sentence. And because the duration of
Mr. Thomass sentence was not technically increased, the
State asserts that there are no due process concerns that
would necessitate transporting Mr. Thomas back into court so
that the trial judge can orally pronounce the
nondiscretionary minimum term of three years imprisonment.
trial courts rationale for denying the motion and the
States argument as it relates to the practical impact of
reversing and remanding for a resentencing hearing echo Chief
Justice Canadys dissent in Dunbar . He dissented
from the part of the courts decision that remanded for a
resentencing hearing requiring Mr. Dunbars presence because
"there is no way in which Dunbars presence would
contribute to the fairness of the procedure. "
Dunbar, 89 So.3d at 908 (Canady, C.J., concurring in
part and dissenting in part) (quoting Stincer, 482
U.S. at 745, 107 S.Ct. 2658). Chief Justice Canady explained
that Mr. Dunbars presence at a resentencing hearing where
the trial court would merely announce a nondiscretionary
minimum term of imprisonment would be "a prime example
of a situation when presence would be useless, or the
benefit but a shadow. " Id. (quoting
Stincer, 482 U.S. at 745, 107 S.Ct. 2658).
the same observation is appropriate here, we are bound by the
rule that a defendants due process rights are violated when
a minimum term of imprisonment is added to a sentence without
the defendants presence. See Dunbar, 89
So.3d at 907. Other districts have reached the same
conclusion even when a resentencing hearing requiring the
defendants presence would practically not change much.
See, e.g., Solomon v. State, 254 So.3d
1121, 1125 (Fla. 5th DCA 2018) (reversing and remanding for a
resentencing hearing requiring the defendants presence where
the trial court will orally pronounce a ten-year minimum term
of imprisonment although the defendant had already been
incarcerated for more than ten years and had essentially
served the sentence the trial court was ordered to orally
pronounce in his presence).
Accordingly, we reverse Thomass sentence and remand for a
resentencing hearing for the trial court to orally pronounce
the three-year minimum term of imprisonment it added to Mr.
Thomass written sentence outside of his ...