FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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 O'Neill,
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.
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. Thomas's 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 (1987)). And because "a
sentencing proceeding in which a sentence is increased is a
critical stage of trial at which the defendant's 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).
denying the motion to correct sentencing error, the trial
court first explained that it did not err when orally
pronouncing Mr. Thomas's 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. Thomas's
aggregate sentence was not increased when the trial court
added the three-year minimum term of imprisonment on Mr.
Thomas's written sentence. And because the duration of
Mr. Thomas's 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'
trial court's rationale for denying the motion and the
State's argument as it relates to the practical impact of
reversing and remanding for a resentencing hearing echo Chief
Justice Canady's dissent in Dunbar. He dissented
from the part of the court's decision that remanded for a
resentencing hearing requiring Mr Dunbar's presence
because "there is no way in which Dunbar's 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). Chief Justice
Canady explained that Mr. Dunbar's 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).
the same observation is appropriate here, we are bound by the
rule that a defendant's due process rights are violated
when a minimum term of imprisonment is added to a sentence
without the defendant's presence. See Dunbar, 89
So.3d at 907. Other districts have reached the same
conclusion even when a resentencing hearing requiring the
defendant's 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 defendant's 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).
we reverse Thomas's 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.
Thomas's written sentence outside of his presence. We