        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    CHRISTOPHER TAVARIS DEAN,
                            Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2406

                              [April 8, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 50-2005-CF-004089-
AXXX-MB.

  Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, Melanie Dale Surber,
Senior Assistant Attorney General, and Matthew Steven Ocksrider,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

    The primary issue before this court is whether Christopher Tavaris
Dean was entitled to de novo resentencing, following the Florida Supreme
Court’s unequivocal remand and instructions to this court which we in
turn passed on and remanded to the trial court—also with unequivocal
instructions. We agree with Dean that he was deprived of the “clean slate”
resentencing hearing to which he was entitled, and we reverse and remand
for yet another sentencing hearing.

   As a reminder to all parties, this is what the Florida Supreme Court
determined and directed we do:

         We quash the Fourth District’s holding regarding Dean’s
      PRR sentences and remand for resentencing because his
      designation as a PRR is not supported by the evidence in the
      record in this case. See Davenport v. State, 971 So. 2d 293,
      295 (Fla. 4th DCA 2008) (“It is permissible for a trial court to
      take judicial notice of its own files, but the trial judge has to
      put such evidence in the record of each case when sentencing
      a defendant as an HFO and PRR.”), rev. denied, 993 So. 2d
      511 (Fla. 2008). On remand, the State may present evidence
      to prove that Dean meets the statutory requirements to be
      sentenced as a PRR. See Ward v. State, 11 So. 3d 459, 459
      (Fla. 3d DCA 2009); see also State v. Collins, 985 So. 2d 985,
      990 (Fla. 2008) (“[B]ecause a resentencing is a new
      proceeding, the State may present additional evidence on
      remand to prove the defendant qualifies for habitual felony
      offender sentencing.”)[.]

      ....

        . . . [W]e quash the Fourth District’s holding regarding
      Dean’s PRR sentences and remand for resentencing.

Dean v. State, 230 So. 3d 420, 424-25 (Fla. 2017) (footnote omitted).

   Of particular importance is the Florida Supreme Court’s specific cite to
State v. Collins in which, in pertinent part, the court held:

      In noncapital cases, too, we have concluded that
      “resentencing entitles the defendant to a de novo sentencing
      hearing with the full array of due process rights.” Trotter v.
      State, 825 So. 2d 362, 367-68 (Fla. 2002); see also Galindez
      v. State, 955 So. 2d 517, 525 (Fla. 2007) (Cantero, J., specially
      concurring) (“We have consistently held that resentencing
      proceedings must be a ‘clean slate,’ meaning that the
      defendant’s vacated sentence becomes a ‘nullity’ and his
      ‘resentencing should proceed de novo on all issues bearing on
      the proper sentence.’” (citation omitted)); Walker [v. State, 988
      So. 2d 6, 8 (Fla. 2d DCA 2007)] (Altenbernd, J., concurring
      specially) (“Generally, courts have held that once a defendant
      successfully challenges his sentence on appeal and the cause
      is remanded for resentencing, the resentencing is a ‘de novo’
      proceeding, at which either side may present evidence anew
      regarding the appropriate sentence.”).

         The principle of de novo sentencing often benefits the
      defendant. See, e.g., Galindez, 955 So. 2d at 525 (Cantero, J.,
      specially concurring) (“In fact, because resentencing is de
      novo, the State was required to produce evidence on
      sentencing issues even if the State established the fact at the

                                     2
      original sentencing.”); Tubwell v. State, 922 So. 2d 378, 379
      (Fla. 1st DCA 2006) (“As this resentencing proceeding was de
      novo, the state was not relieved of its burden to prove the prior
      offenses.” (citations omitted)); Rich v. State, 814 So. 2d 1207,
      1208 (Fla. 4th DCA 2002) (holding that because resentencing
      following reversal is a new proceeding, the State must
      introduce evidence that the defendant qualifies for enhanced
      sentencing, even though such evidence was introduced in the
      previous sentencing hearing); Mills v. State, 724 So. 2d 173,
      174 (Fla. 4th DCA 1998) (holding that even though the
      defendant did not challenge his prior convictions at the
      original sentencing, law-of-the-case principles do not insulate
      the State from proving them at resentencing); Baldwin v.
      State, 700 So. 2d 95, 96 (Fla. 2d DCA 1997) (agreeing that
      because resentencing is a new proceeding, the defendant may
      challenge the accuracy of prior convictions included on his
      scoresheet, even though he did not challenge them at the
      original sentencing).

         We have also recognized that because a resentencing is a
      new proceeding, the court is not limited by the evidence
      originally presented. See Lucas v. State, 841 So. 2d 380, 387
      (Fla. 2003) (“[A] resentencing court is not limited by evidence
      presented (or not presented) in . . . the original . . . sentencing
      phase.”); Mann v. State, 453 So. 2d 784, 786 (Fla. 1984)
      (recognizing that where a remand directs a new sentencing
      proceeding, both sides may present additional evidence).

Collins, 985 So. 2d at 989 (alterations in original) (emphasis in original).

    Despite the fact that Dean was permitted to present evidence at the
hearing, statements made by the trial court and the prosecutor at the
hearing patently evidence their belief that the only purpose of remand was
to introduce evidence that Dean qualified as a Prison Releasee Reoffender.
We encountered a similar situation in Davis v. State, 227 So. 3d 137, 138
(Fla. 4th DCA 2017). In an earlier opinion, Davis’s previous sentence was
reversed and remanded for resentencing. Id. At resentencing, the trial
court announced that it had read everything submitted to it, including
Davis’s sentencing memorandum, letters from Davis’s family and friends,
and certificates from the programs he completed while incarcerated. Id.
The parties were permitted to present their desired evidence and
arguments. Id. However, in pronouncing sentence the trial court
indicated that it was not inclined to “revisit” the sentence of the
predecessor judge or consider new evidence regarding Davis’s behavior in

                                      3
prison, and again imposed a life sentence. Id. at 138-39. This court
reversed on the basis that Davis was not afforded the full panoply of due
process considerations when he was resentenced:

          From our review of the record, we are satisfied that the trial
      court, upon resentencing, afforded Davis due process by
      reviewing in advance all materials submitted by the defense
      for the resentencing hearing and allowing him to present any
      evidence and arguments he wanted. We note that Davis
      makes no issue on appeal regarding whether the successor
      judge was sufficiently familiar with the facts of the case, the
      trial, or the prior sentencing proceeding.

          However, the statements by the successor judge during the
      hearing lead us to conclude that the trial court did not proceed
      on a “clean slate” on resentencing and intentionally decided it
      was not going to evaluate the same evidence submitted at trial
      and the initial sentencing hearing, together with the new
      evidence, which included information about Davis’s
      performance in prison. The trial court acknowledged it was
      “permitted,” by our remand instructions, to go through an
      evaluation process and change the length of the initial
      sentence, but announced “I am not going to revisit that,”
      referring to the prior sentence, and “I am not prepared to do
      that,” referring to consideration of Davis’s performance while
      in prison. Thus, although the trial court afforded substantial
      due process to Davis on resentencing, it failed to afford the
      full panoply of due process, to which he was entitled.

Id. at 139-40.

    As in Davis, Dean was permitted to present mitigating evidence, but the
trial court’s statements clearly indicate that it was not proceeding as if this
was a “clean slate”:

      [THE STATE]: [T]he sentence has always been affirmed; . . .
           it was remanded for the state to prove up the
           documentation of the PRR.

             ....

      THE COURT: But isn’t the issue here today -- and I agree
           with you; I believe Mr. Dean is extremely remorseful --
           but -- and correct me if I’m wrong -- it was reversed for

                                      4
            the state to present evidence to see whether or not he
            qualified as a prison releasee reoffender, correct?

      [THE STATE]: That is correct . . . .

      THE COURT: . . . [T]his is just, you know, going through the
           machinations of the state getting the paperwork in order,
           none of the appellate courts . . . reversed the underlying
           convictions, correct?

            ....

             And the sole purpose of the remand was to rightly or
            wrongly give the state an opportunity to prove the PRR
            status; if he is PRR then it’s still a mandatory sentence,
            correct?

            ....

      [THE STATE]: That is correct.

(Emphasis added.) Because the trial court and state clearly expressed that
the hearing’s purpose was for “documentation of the PRR” and “the state
getting the paperwork in order,” it is apparent that Dean did not receive a
de novo sentencing hearing. Thus, as in Davis, “although the trial court
afforded substantial due process to” Dean by allowing him to present
evidence, “it failed to afford the full panoply of due process, to which he
was entitled.” See Davis, 227 So. 3d at 140.

    A major distinguishing factor between this case and Davis is that the
trial court in Davis was not statutorily required to impose a specific
sentence. By contrast, the trial court in this case was bound to impose
the PRR sentence that Dean received. One might be tempted to conclude
that this renders the error “harmless.” But because Dean was deprived of
the full panoply of due process, the harmless error analysis does not apply.
See Jackson v. State, 880 So. 2d 1241, 1243 (Fla. 1st DCA 2004) (“Because
the deprivation of the right to due process constitutes fundamental error,
a harmless error review is not appropriate.”).

   Relying on the trial judge’s reasoning below, the dissent concludes that
the sentence should be affirmed in that Dean was allowed to present
evidence, because a PRR sentence is “proper,” because the defendant’s
objective is to convince the state not to seek PRR sentencing on remand,
and because the record already reflects “the State’s intention to exercise

                                     5
its discretion to pursue a PRR sentence.”         As accurate as these
observations may be, respectfully, that is not the issue before us: When
Dean was denied a de novo sentencing hearing, he was denied due
process. 1 To limit the analysis to the propriety of the end result or the
likelihood of imposition of an identical sentence on remand is akin to a
harmless error analysis, which is not applicable here. 2

   Although the dissent accurately sets forth an excellent summary of the
forty-nine minute, forty-one page transcript of the full sentencing hearing,
it matters not—because the trial court irrevocably tainted the process.
Based on the trial court’s own words, there was never a chance that Dean
would receive the “clean slate” sentencing hearing to which he was entitled
and which both the Florida Supreme Court and this court ordered.

    Accordingly, we once again remand this matter to the trial court for a
“clean slate” resentencing of the appellant with the full panoply of existing
procedural protections. So we are entirely clear, “resentencing should
proceed de novo on all issues bearing on the proper sentence,” Collins, 985
So. 2d at 989 (citation omitted), which means that the state should
determine whether to seek PRR sentencing, not merely “prove up” PRR
qualification, see generally § 775.082(9)(d)1., Fla. Stat., and that if the
state elects to pursue a PRR sentence, the state must introduce evidence
supporting a PRR sentence, regardless of whether such evidence was
introduced at a prior hearing, see Collins, 985 So. 2d at 989. Furthermore,
the “full panoply” of procedural protections includes “any new
constitutional protections that have been recognized since the defendant’s


1 See Davis, 227 So. 3d at 140 (Ciklin, J., specially concurring) (“I agree with the
dissent's suggestion that the defendant's original sentence may very well have
been ‘entirely appropriate for the crime appellant committed, given his criminal
history.’ But, respectfully, that notion misses the point of the majority opinion:
A unanimous three-judge panel of this court ordered that the original sentence
be vacated and that Davis be resentenced with the commensurate panoply of due
process rights.”).
2 Additionally, we must note and disagree with the dissent’s conclusion that

everyone “was on the same page.” Although co-counsel for the defense indicated
agreement with the trial court’s conclusion that the purpose of the hearing was
“going through the machinations of the state getting the paperwork in order” as
well as its accurate statement that the PRR sentence was mandatory, Dean’s
other attorney asserted that “we are here for a de novo sentencing; it’s not just to
perfect the PRR, prove up part of it . . . .” Moreover, this conclusion is belied by
the facts that Dean presented evidence at the hearing and that, prior to the
hearing, he filed a substantive motion to preclude the imposition of a life
sentence.

                                         6
original sentencing.” See Davis, 227 So. 3d at 139 (quoting Galindez, 955
So. 2d at 525-26 (Cantero, J., specially concurring)).

   Reversed and remanded with instructions.

MAY, J., concurs.
GERBER, J., dissents with opinion.

GERBER, J., dissenting.

   I respectfully dissent.

    The defense filed a Florida Rule of Criminal Procedure 3.800(b)(2)
motion raising the exact argument which the defense has raised in this
appeal – that certain statements made at the resentencing hearing indicate
the state’s and the trial court’s belief that the only purpose on remand was
to introduce evidence proving the defendant qualified as a prison releasee
reoffender (PRR), thus depriving the defendant of his due process right to
a “clean slate” de novo resentencing hearing.

   However, after considering that argument, the trial court entered an
order denying the defense’s rule 3.800(b)(2) motion. In the order, the trial
court properly recognized it held a de novo sentencing hearing at which
the state exercised its discretion to pursue a PRR mandatory life sentence.

   A. The Trial Court’s Well-Reasoned Order

   I adopt the trial court’s well-reasoned order, which relies on the
complete record, not on isolated statements out of context from the
resentencing hearing:

         In Defendant’s Motion to Correct Sentencing Error,
      Defendant asserts that this Court’s August 9, 2018
      resentencing hearing was not conducted in accordance with
      the Florida Supreme Court’s directive. Defendant argues that
      while the Florida Supreme Court remanded the case for a de
      novo resentencing hearing, the parties and the Court were
      under the “misconception” that the resentencing hearing was
      solely for the purpose of determining whether Defendant
      qualified as a PRR. Specifically, Defendant alleges that the
      State was under the misimpression that it was required to
      seek PRR sentencing on remand, and that as a result, the
      Court should set aside Defendant’ s sentence and order a new
      sentencing hearing. The Court disagrees.

                                     7
    Defendant was convicted of Second Degree Felony Murder
on Count 1 and Burglary on Count 2. Normally, second
degree felony murder is a first-degree felony punishable by a
term of years not exceeding life, § 782.04(3), Fla. Stat. (2004),
and burglary (as committed in this case) is a second-degree
felony punishable by a maximum sentence of fifteen years, §
810.02(3), Fla. Stat. (2004). However, because Defendant was
found to qualify as a PRR, Defendant’s sentences of life on
Count 1 and fifteen (15) years on Count 2 were mandatory. §
775.075(9)(a), Fla. Stat. (2004).

   As noted above, the Florida Supreme Court remanded this
case because at Defendant’s February 7, 2014 resentencing
hearing, the State failed to supply sufficient documentary
evidence supporting Defendant’s PRR designation. Dean, 230
So. 3d at 424-25. Instead, as the Florida Supreme Court
determined, this Court improperly relied upon the transcript
of Defendant’s original December 18, 2008 sentencing hearing
at which the proper documentary evidence supporting a PRR
designation was supplied. Id.

    Defendant correctly argues that on remand, the State had
the discretion as to whether to seek PRR sentencing again.
Section 775.082(9)(a)3. provides that if a state attorney
determines a defendant qualifies for PRR sentencing, ‘‘the
state attorney may seek to have the court sentence the
defendant as a prison releasee reoffender,” (emphasis added),
and Florida’s courts have repeatedly held that the discretion
to seek PRR sentencing lies solely with the state attorney. See,
e.g., State v. Cotton, 769 So. 2d 345, 348-49 (Fla. 2000); State
v. Smith, 832 So. 2d 249, 251 (Fla. 5th DCA 2002); Phillips v.
State, 834 So. 2d 272, 274 (Fla. 5th DCA 2002). Further, as
noted by the Florida Supreme Court in State v. Collins, 985
So. 2d 985, 989 (Fla. 2008), remanding for resentencing
creates a new proceeding. See also Lucas v. State, 841 So. 2d
380, 387 (Fla. 2003) (“[A] resentencing court is not limited by
evidence presented (or not presented) in ... the original ...
sentencing phase.”); Mann v. State, 453 So. 2d 784, 786 (Fla.
1984) (recognizing that a remand for new sentencing
proceeding is not limited to a “reweighing”; both sides may
present additional evidence). Thus, in the present case, no
error occurred where the Court allowed the defense to call
witnesses on Defendant’s behalf and the State to submit

                               8
      Supplemental Discovery (DE #666) to support designating
      Defendant a PRR.

          However, insofar as Defendant asserts the State was under
      the “misconception” that it was required to seek PRR
      sentencing on remand, the Court finds Defendant’s claim is
      refuted by the record. On July 10, 2018, the State filed
      separately a Notice to Take Judicial Notice of Records Under
      Seal (DE #678) and Notice of Defendant’s Qualification as a
      PRR and the State’s Intention to Seek Maximum Statutory
      Penalty (DE #679) in preparation for Defendant’s August 9,
      2018 resentencing hearing. (Ex. “B,” Notice to Take Judicial
      Notice and Notice of Defendant’s PRR Qualification). Such
      filings are indicative of the State’s intention to exercise its
      discretion to pursue a PRR sentence. Moreover, during the
      resentencing hearing, defense counsel informed the Court
      that it had attempted “for quite some time” to persuade the
      State to exercise its discretion by not seeking PRR sentencing,
      but that “the state is very powerful in their authority to
      exercise their discretion and they have chosen not to exercise
      that ....” (Ex. “A,” Sentencing Hr’g Tr. 23:15-18.) Therefore,
      the Court finds that the State did, in fact, exercise its sole
      discretion by choosing to pursue a PRR designation and
      sentence at Defendant’s August 8, 2019 resentencing.
      Further, once the Court found that the State’s evidence proved
      that Defendant qualified as a PRR, the Court was obligated to
      find Defendant a PRR and to sentence Defendant to a term of
      life on Count 1 and fifteen years on Count 2, which is exactly
      what the Court did. See Smith, 832 So. 2d at 250 (“once [the
      State] proves that a defendant is qualified under the PRR Act,
      the trial court has no discretion ….”).

(italics in original; underlining added).

   B. The Complete Record Supports the Trial Court’s Order

   I see no due process violation in this record. Again, the complete record
is controlling.    I summarize the forty-nine minute, forty-one page
transcript of the full sentencing hearing as follows:

      •   The trial court, the defense, and the state began by discussing
          why the case had been remanded for a new sentencing hearing.
          The trial court began by stating, “We are here for the new
          sentencing?”     The defense responded, “Yes.”       The state

                                      9
    responded, “actually the sentence has always been affirmed; the
    Supreme Court reversed it in the last -- just as to the issue of the
    court each time had declared the defendant a PRR offender and
    sentenced to the mandatory life and then -- the Supreme Court
    said as to that this is reversed for the state because the document
    -- there was no documentation in the file; it was remanded for
    the state to prove up the documentation of the PRR.” The defense
    replied, “we agree; it’s essentially there was no evidence of PRR
    that was in the record and that’s why we’re back.” (T. 3-4; R.
    3819-20) (emphasis added).

•   The state presented its witness and eleven exhibits to verify the
    defendant’s PRR qualifications. The defense chose not to cross-
    examine that witness, and did not object to any of the state’s
    eleven exhibits. (T. 5-17; R. 3821-33).

•   The defense asked how the trial court wished to proceed. The
    trial court responded, “Whatever you want to present.” (emphasis
    added). (T. 18; R. 3834).

•   The defense objected to one aspect of the scoresheet’s points
    assessment. After hearing the state’s response, the trial court
    overruled the defense’s objection. The state rested. (T. 18-19; R.
    3834-35).

•   The defense stated, “We’d like to put on some evidence.” The
    state did not object, and the trial court responded, “Sure.” (T.
    19; R. 3835.) (emphasis added).

•   The defense began by stating, “[W]e are here for a de novo
    sentencing; it’s not just to perfect the PRR; prove up part of it,
    but it is a de novo sentencing hearing here today.” The state did
    not object at this point, nor did the trial court say anything to
    contradict the defense’s statement. (T. 20; R. 3836).

•   After the defense continued arguing its position instead of
    presenting evidence as previously indicated, the state objected,
    but merely to say, “I think we’ve moved on to argument and I
    would object to argument as opposed to presenting evidence . . .
    otherwise I do have argument also.” The trial court interjected,
    “I’m going to give everybody the opportunity to tell me anything
    they want to tell me, but I don’t know if this is sort of like a little
    preamble to your evidence?” The defense responded, “Just a little

                                 10
    – it’s a preamble I suppose, Judge.”     The trial court replied,
    “Okay, but the state will have an opportunity to tell me anything,
    present anything, argue anything as for the defense.” (emphases
    added). (T. 20-21; R. 3836-37).

•   The defense proceeded to recount the case’s sentencing history:
    “[The first sentencing court] said that this case presented the
    strangest facts and circumstances that he had witnessed in his
    28 years as a lawyer and that, ‘It’s very unfortunate that [the
    defendant] ended up in this tragedy; which I think is a tragedy
    for all sides, but I had no choice in the sentence unfortunately.’
    And then we have the . . . added interesting aspect of when this
    case was remanded for a second trial by the Fourth District Court
    of Appeals [sic]; the Fourth remanded it not just for a new trial
    but -- or plea negotiations is the term that they used twice in
    their opinion, which is a rarity I think when we look at the
    opinions that come out . . . from the Fourth. And now strangely
    we are here just back for the sentencing [from the Florida
    Supreme Court] . . . there was the issue with this manslaughter
    instruction but [a partial concurring opinion] said that that was
    a pyrrhic victory for him, that he had won that legal issue but it
    does not get him a new trial, and so we’re here for the
    sentencing.” (T. 21-22; R. 3837-3838).

•   The defense continued, “[W]e were pursuing this other option for
    quite some time -- is that [Florida] Statute 775.082(9)(a)3[.] does
    allow the state to abandon seeking PRR in certain extenuating
    circumstances including when the victim’s recommendation is
    that the offender not be sentenced at PRR, and that was made
    abundantly clear in multiple ways that -- of how the victim was
    feeling about this case, but the state is very powerful in their
    authority to exercise their discretion and they have chosen not to
    exercise that, and so here we are with [the defendant] facing a
    mandatory life sentence without the possibility of parole. . . . The
    issue is -- with the Eighth Amendment is that whether [the
    defendant] is remorseful or whether he is redeemable or . . .
    whether the opinion of the family or the opinion of the public
    differs from that of a mandatory life sentence being a punishment
    that fits the crime. These are things that unfortunately the PRR
    statute does not allow room for, and I will be frank with Your
    Honor that the precedent of course is not on [the defendant’s]
    side.” (T. 23-24; R. 3839-40) (emphasis added).



                                11
•   The defense requested to present two exhibits to show why the
    defendant did not deserve a life sentence. The first exhibit was a
    Department of Corrections’ certificate of some sort (which is not
    contained in the record). The second exhibit was a nine-minute
    documentary video which the defense prepared “in our efforts to
    have the state exercise [its] discretion with hopefully maybe not
    pursuing [a PRR life sentence].” (T. 25-26; R. 3841-42) (emphasis
    added). The state did not object to either exhibit, and the trial
    court admitted both exhibits into evidence. (T. 26; R. 3842).

•   The defense played the nine-minute documentary video. The
    video featured statements from family members describing,
    among other things: the defendant’s father was killed two
    months before he was born “so you think about a child [like the
    defendant] that never had a father”; growing up, he followed
    around one of his brothers on the streets, “like the criminals, he
    wanted to try to be like me”; after the crime, he “was not out there
    professing his innocence . . . he was just unwilling to accept the
    fact that he could possibly be criminally responsible for the death
    of [the defendant’s accomplice]”; his trial counsel “was [the] more
    interested [person] in taking this case to trial . . . [the defendant]
    would have preferred resolving it”; after thirteen years in prison,
    he has “a good head on his shoulders”; although he missed being
    with his children while they grew up, he “always said that school
    comes first . . . because he want to see us succeed in everything
    that we do” and “[e]ven though he’s like been gone for a while he
    still like tries to stay in my life the best way he can”; he “is missing
    out on moments that he shouldn’t miss out on”; “he has paid his
    dues to society for what he’s done and he’s had a lot of time to
    think about it and we hope -- he hopes that he would eventually
    . . . be able to live life outside of prison and have a chance at . . .
    being a productive member of society”; “[H]e’s got a really good
    heart. If they really sit down and talk with [him] they will see . .
    . Just give him a second chance . . . just for his kids . . . so he
    can be with his kids in life.”; “I hope that he comes out and just
    wants to just make up all of that time that he missed outside,
    have different objectives, good job and educate himself . . . have
    his own life outside of criminal stuff.” (T. 27-35; R. 3843-3851).

•   The defense had the defendant allocute before the trial court. The
    defendant first briefly recounted his upbringing.         He then
    described his feelings about his accomplice who was killed in the
    aftermath of the crime. “My friend, my brother . . . was an


                                 12
    extremely good friend of mine, pretty much my brother in every
    aspect of the word; we shouldn’t have been involved in this chain
    of events that unfortunately cost my brother his life. I tried my
    best to save [him] from being (indiscernible) like he did. The day
    that [he] died the old [me] died too on that same day also. On
    that day everything -- aspect of my life have changed forever.
    There are events that occur in a person’s life sometimes that open
    up their eyes to appreciate every -- of how life is supposed to be.
    For the past 13 years of my incarceration I have come to
    appreciate every person, individual person who have -- for who
    they are. I am deeply in love with the [man who I am] -- being
    today; I promise everyone in this courtroom today that I will love
    to give -- be given another chance.” (T. 36-38 ; R. 3852-54).

•   The defendant completed his allocution by thanking the
    accomplice’s mother: “[Y]ou along with my mother have been --
    sincerely been like a hand from heaven. . . . Your unconditional
    support throughout this entire situation . . . you have lost a
    biological son . . . 13 years ago but I want you -- for you to know
    that the rest of my life I will never -- forever be -- I will ever forever
    be your son too.” (T. 38; R. 3854).

•   The trial court asked, “Anything else from the defense?” The
    defense responded, “No, that’s all.” (T. 38-39; R. 3854-55)
    (emphasis added).

•   The trial court then heard closing argument before rendering the
    mandatory PRR life sentence. That transcript portion is quoted
    here verbatim:

    [STATE]: Just brief argument, Judge. First of all, I just
    would like to point out that there’s been a mixture of points
    being made here today. I do appreciate that [the defendant]
    has turned his life around while he’s been in custody and
    that’s -- and I do think that that’s genuine; mixing up with
    that is this continuous trying to blame [the burglary victim
    who killed the accomplice], which is inappropriate and
    contrary to the law. For example, in the video just now
    playing that [the victim] is [driving] 100 miles an hour, that
    only meant that the defendant was going much faster than
    100 miles an hour because [the burglary victim], everybody
    knows, couldn’t catch him. And with regard to how this is
    so different, it’s not different. There’s second-degree

                                  13
murder felony murder cases that happen every week in this
courthouse; two guys go in to rob a 7-11, the clerk pulls
his gun and kills one of them, we send those -- we send
Defendant A to prison for life always and nobody blinks an
eye, so this really isn’t different at all. [The burglary victim]
could have theoretically shot and killed [the accomplice]
during the burglary . . . and [the defendant] would still be
charged with second-degree felony murder. So I do think
that there’s a mixture of issues with regard to that because
I do think [the defendant] has made a good --

THE COURT: But isn’t the issue here today -- and I agree
with you; I believe [the defendant] is extremely remorseful
-- but -- and correct me if I’m wrong -- it was reversed for
the state to present evidence to see whether or not he
qualified as a prison releasee reoffender, correct?

[STATE]: That is correct, and basically under 775.082(d) it
speaks of the legislative intent on the sentencing, and
under 775.082(3) the defendant must be sentenced to the
mandatory life and 15 --

THE COURT: And even in the Supreme Court opinion --
or maybe it was in the defense’s motion when they said this
is just, you know, going through the machinations of the
state getting the paperwork in order, none of the appellate
courts starting at the Fourth all the way up to the Supreme
Court reversed the underlying convictions, correct?

[DEFENSE]: Correct.

THE COURT: And the sole purpose of the remand was to
rightly or wrongly give the state an opportunity to prove the
PRR status; if he is PRR then it’s still a mandatory
sentence, correct?

[DEFENSE]: Correct.

[STATE]: That is correct.

THE COURT: Okay. I didn’t mean to cut you off but I
wanted to make sure we were all on the same track.



                             14
        [STATE]: No, that was my final point, was that the PRR
        statute has been proven here today and it is mandatory.

        THE COURT: And the PRR statute was established under
        the exhibits that were all moved in without objection?

        [STATE]: Yes.

        THE COURT: Yes, sir?

        [DEFENSE]: We really don’t have anything to add. Judge,
        we obviously are objecting that it’s a violation of the Eighth
        Amendment and we hope that one day that will be taken
        out and we’ll see [the defendant] back here again. The only
        thing I would say to [the state] is we disagree about I guess
        factually what happened in some ways; but for [the
        burglary victim’s] behavior nobody would have died -- not
        to say that he isn’t a victim as well, he was, he is of the
        burglary, but in comparison to the robbery example where
        -- I mean that’s just a much, much different situation, the
        victim in the robbery that no -- that takes no action to do
        anything other than to defend himself in that particular
        moment, and that’s not what we had here and I think that’s
        why [the first sentencing court] said what he said and the
        Fourth said what they said about plea negotiations, and
        unfortunately we couldn’t agree on that before we came
        before you today.

        THE COURT: All right. Well, is there anything else from
        anybody?

        [STATE]: No, Your Honor.

        THE COURT: Anything else from the defense?

        [DEFENSE]: No.

        THE COURT: All right, so based on the exhibits that were
        moved into evidence without objection then I do find that
        the defendant is a prison releasee reoffender and by statute
        it is a mandatory life sentence. The original sentence will
        stand.

(T. 39-43; R. 3855-59) (emphasis added).

                                    15
   Having presented a summary of, and then a verbatim portion of, the
resentencing hearing, it is clear that everyone, including the defense, was
on the same page. The defense did not challenge the state’s PRR evidence.
The defense was permitted to, and did, present all of its requested evidence
and argument. The defense twice stated on the record that it had no
further evidence or argument. The defense never raised a due process
objection or claimed the trial court was not providing the defense with a
de novo resentencing hearing or a full opportunity to be heard. Instead,
the defense ultimately (and properly) conceded that once the state proved
the defendant qualified as a PRR, the trial court had no choice but to
impose a mandatory life sentence.

   C. The Majority’s Reliance on Davis v. State is Misplaced.

   The majority’s reliance on Davis v. State, 227 So. 3d 137 (Fla. 4th DCA
2017), is misplaced. To make this point, a detailed summary of Davis is
required.

    Davis was sentenced as a habitual violent felony offender to life in
prison with a minimum mandatory of fifteen years. Id. at 138. Davis later
filed a motion to correct illegal sentences on the ground that he did not
qualify as a habitual violent felony offender. Id. The trial court denied the
motion. Id. We reversed the trial court and remanded the case for
resentencing with the following direction: “Although [Davis] does not
qualify as an [habitual violent felony offender], he may qualify as a habitual
felony offender and those sanctions may be sought on remand.” Davis v.
State, 164 So.3d 96 (Fla. 4th DCA 2015) (emphasis added).

    On remand, the state filed its notice of intent to seek an enhanced
penalty for Davis as a habitual felony offender. 227 So. 3d at 138. Davis
filed a sentencing memorandum, listing several mitigating factors,
including letters from family and friends, and evidence of rehabilitation
through programs while incarcerated. Id.

   A resentencing hearing was held by a successor judge, because the
judge who tried the case and imposed the original sentence was no longer
on the bench. Id. At the beginning of the hearing, the successor judge
stated he had read everything that was submitted, including Davis’s
sentencing memorandum, the letters from his family and friends, and his
certificates for the programs which he completed while incarcerated. Id.




                                     16
    The parties stipulated that Davis qualified for sentencing as a habitual
felony offender. Id. The successor judge then permitted both parties to
present whatever evidence and arguments either desired. Id.

    However, when pronouncing sentence, the successor judge indicated
he was not inclined to “revisit” the sentence imposed by the judge who
tried the case, or consider the new evidence regarding Davis’s behavior
while in prison. Id. Instead, the trial court simply determined Davis to be
a habitual felony offender and sentenced him again to life in prison with
the mandatory minimums. Id. at 138-39.

   On appeal, Davis argued the successor judge’s sentence was illegal
because the successor judge, on remand, did not resentence him with the
“full panoply of due process.” Id. at 139. We agreed with Davis’ argument,
reasoning:

          From our review of the record, we are satisfied that the trial
      court, upon resentencing, afforded Davis due process by
      reviewing in advance all materials submitted by the defense
      for the resentencing hearing and allowing him to present any
      evidence and arguments he wanted. We note that Davis
      makes no issue on appeal regarding whether the successor
      judge was sufficiently familiar with the facts of the case, the
      trial, or the prior sentencing proceeding.

         However, the statements by the successor judge during the
      hearing lead us to conclude that the trial court did not proceed
      on a “clean slate” on resentencing and intentionally decided it
      was not going to evaluate the same evidence submitted at trial
      and the initial sentencing hearing, together with the new
      evidence, which included information about Davis's
      performance in prison.             The     [successor     judge]
      acknowledged it was “permitted,” by our remand
      instructions, to go through an evaluation process and
      change the length of the initial sentence, but announced
      “I am not going to revisit that,” referring to the prior
      sentence, and “I am not prepared to do that,” referring
      to consideration of Davis’s performance while in prison.
      Thus, although the trial court afforded substantial due
      process to Davis on resentencing, it failed to afford the
      full panoply of due process, to which he was entitled.

Id. at 139-40 (emphasis added).


                                     17
    As the majority here acknowledges, “a major distinguishing factor
between this case and Davis is that the [successor judge] in Davis was not
statutorily required to impose a specific sentence,” whereas “the trial court
in this case was bound to impose the PRR sentence that Dean received.”
Maj. Op. at 5 (emphasis added). However, the majority discounts that
“major distinguishing factor” on the basis that the trial court’s own words
“irrevocably tainted the process,” id. at 6, even though those words were
wholly correct as a matter of law.

   In my view, that “major distinguishing factor” is why this case should
be affirmed. The successor judge in Davis was required by law to engage
in an “independent assessment” of Davis’s sentence because the successor
judge had the ability to do so. 227 So. 3d at 140. Here, once the state
proved the defendant was PRR-qualified, the trial court was required by
law to sentence the defendant to life in prison. The trial court had no
ability to conduct an “independent assessment” of anything except for
whether the state proved the defendant was PRR-qualified. The state did
so without challenge from the defense, and the trial court exercised the
only power it had under the law.

                                Conclusion

  In sum, the due process violation which the defense’s briefs now allege,
and upon which the majority expressly relies, simply did not occur.

   By leading the majority into concluding that a due process violation
occurred, when the record plainly reveals otherwise as shown above, the
defense has achieved what was undeniably its true goal – to set aside the
defendant’s PRR life sentence and obtain a fourth sentencing hearing in
the hope that it can have yet another opportunity to convince the state to
no longer seek a mandatory PRR life sentence.

    I acknowledge that the defense, and perhaps others, may disagree with
the state’s decision to have sought a mandatory PRR life sentence under
the facts of this case. In fact, in the transcript quoted above, the defense
twice interpreted this court’s precedent in the defendant’s case as implying
this court’s disagreement. See Dean v. State, 124 So. 3d 997, 997 (Fla.
4th DCA 2013) (twice stating, “We grant the petition and remand for a new
trial or plea negotiations.”) (emphasis added). As the defense suggested,
remand language implying that plea negotiations be employed is “a rarity
I think when we look at the opinions that come out . . . from the Fourth.”

   However, regardless of whether any such disagreement exists or is
justified, the state repeatedly has exercised its prosecutorial discretion to

                                     18
seek a mandatory PRR life sentence, which is its prerogative. See State v.
Cotton, 769 So. 2d 345, 351 (Fla. 2000) (“[A]bsent a compelling equal
protection argument, the exercise of . . . prosecutorial discretion is not
generally subject to judicial review.”).

   The state has once again exercised its prosecutorial discretion in this
case, and the sentence was proper under the law. The trial court provided
the defense with a de novo sentencing hearing, with the opportunity to
present “[w]hatever you want” and “anything [you] want to tell me.” The
defense did so.

    No due process violation occurred. Once the state proved the defendant
qualified as a PRR, the trial court had no choice but to impose a mandatory
life sentence. This is not a “harmless error” case. This is a “no error” case.
We should affirm.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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