              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



DANIEL LEON HEATLEY, a/k/a         )
DANIEL LEON HEATLY,                )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D16-4562
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed September 25, 2019.

Appeal from the Circuit Court for
Hillsborough County; Thomas P. Barber,
Judge.

Ita M. Neymotin, Regional Counsel, Second
District, and Joseph Thye Sexton, Assistant
Regional Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Fort
Myers, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona
Beach, for Appellee.



KHOUZAM, Chief Judge.

             Daniel Leon Heatley, a/k/a Daniel Leon Heatly, appeals his sentences

entered on remand from Heatly v. State, 192 So. 3d 584 (Fla. 2d DCA 2016). Because
the circuit court erred in declining to consider Heatley's presentence investigation report

(PSI) at a full de novo resentencing hearing, we reverse and remand. We affirm without

comment as to Heatley's remaining claim.

              Heatley was convicted of first-degree arson and burglary of an unoccupied

dwelling. On the arson count, he was sentenced to life in prison as a habitual felony

offender (HFO) with a thirty-year mandatory minimum term as a prison releasee

reoffender (PRR). On the burglary count, he was sentenced to a concurrent thirty years

in prison with a fifteen-year mandatory minimum term as a PRR. This court affirmed

Heatley's convictions and sentences on direct appeal. Heatly v. State, 177 So. 3d 615

(Fla. 2d DCA 2015) (table decision).

              Heatley filed a petition alleging ineffective assistance of appellate counsel.

Heatly, 192 So. 3d at 584. This court granted his petition in part, reversed his

sentences, and remanded for resentencing before a different judge. Id. at 585. On

remand, a de novo resentencing hearing was held. The court again found that Heatley

qualified as a PRR and a HFO. Heatley was sentenced to the same sentences that he

originally received, and he filed the instant appeal.

              During the pendency of this appeal, Heatley filed two motions to correct

sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his first

such motion, Heatley correctly pointed out that it was error to resentence him as a HFO

without either reviewing his original PSI or ordering a new one. The court granted

Heatley's motion and held a new resentencing hearing. However, at that hearing the

court only considered the PSI and declined to conduct a full de novo resentencing,

instead relying on the State's evidence from the previous hearing. Heatley then filed a




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second rule 3.800(b)(2) motion, arguing that he was entitled to a full de novo

resentencing hearing at which his PSI would be considered. The court erroneously

denied this motion.

              "The trial court's failure to consider a mandatory presentence investigation

report before sentencing a defendant is a sentencing error that can be preserved via the

filing of a rule 3.800(b) motion." Albarracin v. State, 112 So. 3d 574, 574 n.1 (Fla. 4th

DCA 2013); see also White v. State, 271 So. 3d 1023, 1027 (Fla. 4th DCA 2019)

(same). Here, Heatley was entitled to have the court consider his PSI at resentencing

pursuant to section 775.084(3)(a)(1), Florida Statutes (2018), which provides:

              (3)(a) In a separate proceeding, the court shall determine if
              the defendant is a habitual felony offender or a habitual
              violent felony offender. The procedure shall be as follows:

              1. The court shall obtain and consider a presentence
              investigation prior to the imposition of a sentence as a
              habitual felony offender or a habitual violent felony offender.

(Emphasis added.)

              Where the court has discretion to impose a new sentence and is not

merely performing a ministerial act, a defendant is entitled to a full de novo resentencing

hearing. Marana v. State, 226 So. 3d 329, 329 (Fla. 1st DCA 2017). Resentencing

must proceed as an entirely new proceeding where all issues bearing on the proper

sentence must be considered de novo and the defendant is entitled to the full array of

due process rights. State v. Collins, 985 So. 2d 985, 989 (Fla. 2008). Resentencing is

not just a reweighing of existing evidence; rather, both sides may present additional

evidence. Id. Indeed, "[i]n Florida, the State is required to produce evidence during the

new sentencing proceeding to establish facts even if those facts were established




                                           -3-
during the original sentencing proceeding." Lebron v. State, 982 So. 2d 649, 659 (Fla.

2008).

             Because the court has discretion in imposing a HFO sentence, see Peek

v. State, 143 So. 3d 1101, 1102 (Fla. 5th DCA 2014), a resentencing hearing is needed

to address whether a defendant qualifies for HFO sentencing. Accordingly, we reverse

and remand for the circuit court to conduct a full de novo resentencing hearing at which

Heatley's PSI shall be considered.

             Reversed and remanded with instructions.


KELLY and BLACK, JJ., Concur.




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