      Third District Court of Appeal
                              State of Florida

                           Opinion filed June 7, 2017.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D15-2134
                         Lower Tribunal No. 02-4050



                       Nelson Vladimir Gonzalez,
                                   Appellant,

                                       vs.

                           The State of Florida,
                                   Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Victoria R. Brennan and Nushin G.
Sayfie, Judges.

     Nelson Vladimir Gonzalez, in proper person.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before EMAS, LOGUE and SCALES, JJ.

     EMAS, J.
                      ON MOTION TO ENFORCE MANDATE

      In Gonzalez v. State, 194 So. 3d 380 (Fla. 3d DCA 2016), Gonzalez

appealed from an order denying his pro se motion to correct sentence pursuant to

Florida Rule of Criminal Procedure 3.800(a). We held that the sentence imposed

upon Gonzalez (following a probation violation hearing) failed to properly award

Gonzalez credit for prison time he had previously served on his probationary split

sentence. However, we also held that an entirely new sentencing proceeding was

unnecessary; instead, and in light of the clear and unequivocal intent of the trial

court as articulated at the sentencing hearing, we remanded this cause to the trial

court with directions to “restructure the sentence to reflect the trial court’s

articulated sentencing goal, while properly awarding the prison credit to which

Gonzalez is entitled.” Id. at 381.

      Our opinion did not expressly require that Gonzalez be present and

represented by counsel at the resentencing. Following our mandate, the original

sentencing judge, without Gonzalez or his counsel being notified or present,

entered a resentencing order on June 3, 2016, sentencing Gonzalez to twenty-five

years in prison. The record contains no transcript of any proceeding at which this

was accomplished, and we do not know the method by which the original

sentencing judge determined that this amended sentence complied with our

mandate. What we do know is that, because neither Gonzalez nor his counsel was


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present at the resentencing, Gonzalez was not aware that the resentencing was

taking place and was not aware of the entry of this order until after the time for

filing a direct appeal had expired. Gonzalez filed this motion to enforce mandate

contending, inter alia, that he had a right to be present and represented by counsel.

      The State contends that our opinion, and the mandate which followed,

merely required the trial court to undertake a ministerial task and that, therefore,

Gonzalez did not have a right to be present for the resentencing. This statement of

the law, however, is not precisely correct.1    Instead, and as the Florida Supreme

Court has held, a “defendant has a right to be present and to be represented by

counsel at any resentencing proceeding from a rule 3.800(a) motion,” but a

“violation of the right to be present is subject to a harmless error analysis.” Jordan

v. State, 143 So. 3d 335, 338 (Fla. 2014).

      This distinction is important, because the rule is a recognition of the basic

constitutional principle that “a defendant has the right to be present in the

1 To be fair, this court (including, regrettably, this author) has made the very same
mistake of conflating the analysis and stating, as a principle of law, that a
defendant does not have the right to be present at a resentencing which merely
involves a ministerial task. See, e.g., Holmes v. State, 100 So. 3d 281 (Fla. 3d
DCA 2012); Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012) (aff’d but
criticized in 143 So. 3d 335 (Fla. 2014)); Velez v. State, 988 So. 2d 707 (Fla. 3d
DCA 2008). Although it may be implicit in those cases that the defendant’s
absence from the resentencing was harmless error, the instant case illustrates the
importance of starting the analysis with the proposition that a defendant does
indeed have a right to be present and represented by counsel at resentencing, but
recognizing that reversal of that sentence is not required if the State can establish
that a violation of this right was harmless error.

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courtroom at every critical stage of the proceeding.” Jackson v. State, 767 So. 2d

1156, 1159 (Fla. 2000); Fla. R. Crim. P. 3.180(a)(9)(providing that “the defendant

shall be present. . . at the pronouncement of judgment and the imposition of

sentence.”) The “ministerial act” is simply a recognized exception to that rule, and

the failure to ensure a defendant’s presence at resentencing, even if for a

ministerial act, requires “the state to show beyond a reasonable doubt, that the

error (absence) was not prejudicial.” Jordan, 143 So. 3d at 339 (quoting Garcia v.

State, 492 So. 2d 360, 264 (Fla. 1986)).

      Here, the State cannot demonstrate that the error was harmless. Indeed, the

record establishes that the sentence imposed following remand was erroneous: As

discussed above, following our mandate, the original sentencing judge, on June 3,

2016 vacated the sentence and imposed a sentence of twenty-five years. It does

not appear that this newly-imposed sentence comported with our directive that the

trial court “restructure the sentence to reflect the trial court’s articulated sentencing

goal [of fourteen years and five months], while properly awarding the prison credit

to which Gonzalez is entitled.” Gonzalez, 194 So. 3d at 381.

      In fact, after the original sentencing judge imposed this twenty-five year

sentence on remand, the Florida Department of Corrections sent a letter to the trial

court, asking for clarification of this new sentence. By that time, a successor judge

had been assigned to the division and, after reviewing the matter, entered an order



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on November 2, 2016 entitled “Order Clarifying and Resentencing Defendant.” In

that order, the successor judge acknowledged that the twenty-five year sentence

imposed following remand “would result in a net sentence of at least three (3)

years longer than the Trial Court had unequivocally articulated on the record.”

(Emphasis added.) Nevertheless, the successor judge reduced the sentence by only

one and one-half years, to twenty-three years and six months.2      As with the first

resentencing order following remand, there is no record evidence that Gonzalez

and his counsel knew of, or were present for, the proceeding at which the successor

judge entered the clarified resentencing order. The presence and participation of

Gonzalez and his counsel at either of these two resentencing proceedings certainly

would have increased the likelihood that the resentencing order complied with our

prior opinion and mandate.

      We therefore grant the motion to enforce mandate, vacate the clarified

resentencing order entered on November 2, 2016 (as well as the resentencing order

of June 3, 2016) and remand for entry of a sentence that properly grants all


2 It may well be that the clarified sentence of twenty-three years and six months
(nunc pro tunc to the original sentencing date of June 25, 2013) does in fact
achieve the original articulated sentencing goal of a net sentence of fourteen years
and six months. However, the clarified sentencing order entered by the successor
judge awarded jail credit “from 12/4/12 per court” (without indicating the
appropriate end date for calculation purposes). Further, the sentencing order failed
to include prior jail credit from 2/9/02 to 7/9/04 (the time Gonzalez spent in the
county jail prior to the original plea and sentence in 2004), and did not indicate the
actual amount of credit for prior prison time served.

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previous jail and prison credit, and otherwise complies with the opinion and

mandate previously issued in this cause. The defendant shall be present for, and

represented by counsel at, the resentencing.




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