          Supreme Court of Florida
                                   ____________

                                   No. SC12-854
                                   ____________

                               TYRONE JORDAN,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [April 10, 2014]

QUINCE, J.

      This case is before the Court for review of the decision of the Third District

Court of Appeal in Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012). In a

subsequent order, the district court amended its opinion to certify the following

question of great public importance:

      WHETHER THE CONCURRENT SENTENCE DOCTRINE SET
      FORTH IN FRIZZELL V. STATE, 238 So. 2d 67 (Fla. 1970),
      REMAINS VALID AFTER ABOLISHMENT OF THE PAROLE
      SYSTEM IN FAVOR OF SENTENCING GUIDELINES.

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that

follow, we rephrase the certified question to read:
      WHETHER THE DEFENDANT’S PRESENCE IS REQUIRED AT
      RESENTENCING WHERE THE POSTCONVICTION COURT,
      PURSUANT TO THE DEFENDANT’S RULE 3.800(a) MOTION,
      REDUCES THE PRISON SENTENCE AS TO ONE COUNT BUT
      LEAVES INTACT A LONGER CONCURRENT SENTENCE ON
      ANOTHER COUNT.

Accordingly, we answer the rephrased certified question in the affirmative and

approve the result, but not the reasoning, of the Third District’s decision on the

issue of whether the defendant is required to be present at resentencing when the

reduction of one sentence leaves a longer concurrent sentence still intact.

                    FACTS AND PROCEDURAL HISTORY

      Tyrone Jordan was convicted of one count of burglary with an assault or

battery, a first-degree felony, and one count of strong-arm robbery, a second-

degree felony. Jordan, 83 So. 3d at 911. The sentencing judge found him to be a

habitual violent felony offender (HVFO) under section 775.084(4), Florida Statutes

(1993), and sentenced him to concurrent life sentences with fifteen-year mandatory

minimums for each conviction. Jordan, 83 So. 3d at 911. Jordan filed a Motion to

Correct an Illegal Sentence, under Florida Rule of Criminal Procedure 3.800(a),

alleging that a life sentence on the second-degree felony conviction was

impermissible. Jordan, 83 So. 3d at 911. Without holding a hearing, the trial court

granted the motion, vacated the sentence for the robbery count, and resentenced

Jordan to the maximum under the statute—thirty years—with a ten-year mandatory

minimum, still running concurrently. Id.; § 775.084(4)(b). “Because the life

                                         -2-
sentence on the burglary count remained unchanged, the trial court determined

there was no need to hold a resentencing hearing where [Jordan] could be present.”

Jordan, 83 So. 3d at 911. Jordan appealed this determination. Id.

      The Third District found that Jordan was not constitutionally entitled to be

present at resentencing as his resentencing was only a “ministerial act.” Id. (citing

Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006) (holding that a defendant is

not constitutionally entitled to be present at resentencing where the resentencing is

only a ministerial act to correct a prior sentence); Velez v. State, 988 So. 2d 707,

708 (Fla. 3d DCA 2008) (finding that resentencing on one of two counts is a

ministerial act if the defendant is serving a concurrent sentence of equal or greater

length)). The district court acknowledged that this Court abrogated the concurrent

sentence doctrine in Frizzell, but held that because the parole system was abolished

in Florida in favor of sentencing guidelines, the rationale for abrogation of the

doctrine is no longer valid. Jordan, 83 So. 3d at 911. Thus the Third District

affirmed the sentence imposed by the trial court. Id. Jordan filed a Motion for

Certification, which the Third District granted, amending its opinion to certify the

following question:

      WHETHER THE CONCURRENT SENTENCE DOCTRINE SET
      FORTH IN FRIZZELL V. STATE, 238 So. 2d 67 (Fla. 1970),
      REMAINS VALID AFTER ABOLISHMENT OF THE PAROLE
      SYSTEM IN FAVOR OF SENTENCING GUIDELINES.

                                    ANALYSIS

                                         -3-
      The concurrent sentence doctrine provides that in the case of multiple

concurrent sentences, an appellate court need not address challenges to every

conviction where another conviction with a concurrent sentence of equal or greater

length has been affirmed on appeal. See Hirabayashi v. United States, 320 U.S.

81, 85 (1943). In Frizzell, we abrogated the doctrine in habeas corpus cases in

Florida. 238 So. 2d at 69. However, it appears from the Third District’s opinion

and the language of the certified question that the district court misconstrued our

opinion in Frizzell. The district court’s opinion reads, “We recognize that the

Florida Supreme Court abrogated this concurrent sentence doctrine [in Frizzell] in

1970. There the court concluded that concurrent resentencing was a crucial stage

requiring the defendant’s presence because of the possibility of obtaining more

favorable consideration for parole.” Jordan, 83 So. 3d at 911 (citation omitted).

However, nowhere in Frizzell did this Court reach such a conclusion or use any

language relating to a defendant’s presence at resentencing. Additionally, Frizzell

did not abrogate the concurrent sentence doctrine in all cases, 1 only in those

involving a writ of habeas corpus. Frizzell, 238 So. 2d at 69 (“From henceforth

this Court will consider the merits of petitions for habeas corpus even though the



       1. This fact is evidenced by the Florida cases in which the doctrine has still
been applied after 1970: Foxx v. State, 392 So. 2d 48 (Fla. 3d DCA 1981); Jacobs
v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980); Mathis v. State, 348 So. 2d 1221
(Fla. 3d DCA 1977).


                                         -4-
petitioner is not entitled to be released if successful in his attack on a conviction,

and regardless of whether the sentences are concurrent or consecutive.”). Thus,

Frizzell does not apply to the instant case.

      Furthermore, the Third District’s opinion implies that the rule of law the

district court developed in Velez and relied on in its decision below constitutes the

concurrent sentence doctrine. See Jordan, 83 So. 3d at 911 (citing Velez, then

stating, “We recognize that the Florida Supreme Court abrogated this concurrent

sentence doctrine in 1970” (emphasis added)). However, the concurrent sentence

doctrine provided that appellate courts may decide not to address a challenge to a

conviction if another conviction with a concurrent sentence of equal or greater

length will remain intact. The Third District’s decisions in Velez and the instant

case do in fact address such a challenge—by finding that any reduction to the

challenged sentence in such circumstances constitutes a “ministerial act” not

requiring the defendant’s presence at resentencing. As such, in neither the instant

case nor in Velez was the Third District applying the concurrent sentence doctrine.

      Because both Frizzell and the concurrent sentence doctrine are inapplicable

to the case at bar, we rephrase the certified question as follows:

      WHETHER THE DEFENDANT’S PRESENCE IS REQUIRED AT
      RESENTENCING WHERE THE POSTCONVICTION COURT,
      PURSUANT TO THE DEFENDANT’S RULE 3.800(a) MOTION,
      REDUCES THE PRISON SENTENCE AS TO ONE COUNT BUT
      LEAVES INTACT A LONGER CONCURRENT SENTENCE ON
      ANOTHER COUNT.

                                          -5-
For the reasons outlined below, we answer this question in the affirmative.

                      I. Was Jordan’s Presence Required?

      “[O]ne of a criminal defendant’s most basic constitutional rights is the right

to be present in the courtroom at every critical stage in the proceedings.” Jackson

v. State, 767 So. 2d 1156, 1159 (Fla. 2000). Florida Rule of Criminal Procedure

3.180(a)(9) requires the defendant’s presence “at the pronouncement of judgment

and the imposition of sentence.” We have extended this right to resentencing

hearings as well. See Jackson, 767 So. 2d at 1160 (finding that defendant’s

presence would contribute to the fairness of the procedure and thus extending the

right to be present to the hearing where the sentence will be reconsidered); Griffin

v. State, 517 So. 2d 669, 670 (Fla. 1987) (finding presence of defendant necessary

at resentencing so that defendant has the opportunity to submit evidence relevant to

the sentence, if warranted); State v. Scott, 439 So. 2d 219, 221 (Fla. 1983) (finding

defendant entitled to be present at a sentencing correction in the same manner and

to the same degree as when the defendant was originally sentenced).

      Thus, “[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,” Acosta v.

State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010), and Jordan was entitled to be

present at his resentencing. The trial court committed error by resentencing Jordan




                                        -6-
in his absence. 2

                          II. Was The Error Harmless?

      A violation of the right to be present is subject to a harmless error analysis.

See Smithers v. State, 826 So. 2d 916, 927 (Fla. 2002). “In other words, when the

defendant is involuntarily absent during a crucial stage of adversary proceedings

contrary to rule 3.180(a), the burden is on the state to show beyond a reasonable

doubt that the error (absence) was not prejudicial.” Garcia v. State, 492 So. 2d

360, 364 (Fla. 1986). “[W]hile rule 3.180(a) determines that the involuntary

absence of the defendant is error in certain enumerated circumstances, it is the

constitutional question of whether fundamental fairness has been thwarted which

determines whether the error is reversible.” Id. Under this standard, we have

found harmless error where the defendant suffered no prejudice from his absence,

“the defendant would not have been able to assist his counsel in opposing adverse

rulings,” or “no adverse rulings were made outside the defendant’s presence.”

Ault v. State, 53 So. 3d 175, 202 (Fla. 2010) (citing Pomeranz v. State, 703 So. 2d

465, 471 (Fla. 1997); Roberts v. State, 510 So. 2d 885, 890-91 (Fla. 1987); Garcia,

492 So. 2d at 363).

      2. The Third District’s analysis focused on the fact that Jordan was being
resentenced on only one count, while his longer, concurrent sentence of life
imprisonment would remain intact. Jordan, 83 So. 3d at 911. However, that fact is
more relevant to a harmless error analysis than to a determination of whether the
defendant had a right to be present.


                                         -7-
      The Third District is correct that resentencing a defendant in his absence will

be harmless where it involves only a ministerial act. Orta, 919 So. 2d at 604;

Acosta, 46 So. 3d at 1180 (explaining that the right of presence does not exist

where the resentencing “concerns issues that are purely ministerial in nature”).

However, Florida’s district courts have found that a resentencing in which a trial

judge has discretion as to the new sentence is not a ministerial act and thus requires

the defendant’s presence.3 The Third District itself has stated, “A defendant will

receive a new sentencing hearing if the resentencing involves additional

consideration or sentencing discretion, not if the act to be done is ministerial in

nature, such as striking an improper portion of the sentence.” Mullins v. State, 997

So. 2d 443, 445 (Fla. 3d DCA 2008) (emphasis added). Therefore, a resentencing

at which the trial judge has judicial discretion is not a ministerial act.


       3. Frison v. State, 76 So. 3d 1103, 1104-05 (Fla. 5th DCA 2011) (rejecting
State’s argument that defendant’s resentencing was merely ministerial because,
although parties agreed that life sentence was illegal, imposition of a forty-year
sentence was not mandatory, thus trial court had discretion on resentencing);
Acosta, 46 So. 3d at 1180-81 (explaining that while a fifteen-year mandatory
minimum requirement limited the trial court’s discretion at the original sentencing
hearing, the removal of that requirement restored sentencing discretion to the trial
judge, and thus “the resentencing was no longer a ministerial act”); Cross v. State,
18 So. 3d 1235, 1235-36 (Fla. 1st DCA 2009) (relying on Mullins v. State, 997 So.
2d 443 (Fla. 3d DCA 2008), to reject State’s argument that striking the minimum
mandatory term was merely ministerial where parties and court falsely believed the
10/20/Life minimum mandatory sentence applied); Lecroy v. State, 954 So. 2d
747, 748 (Fla. 4th DCA 2007) (finding resentencing to be ministerial where trial
court had no discretion to vary from this Court’s mandate of a specific sentence to
be imposed on resentencing).

                                          -8-
      The instant resentencing was not ministerial because the trial court had

discretion as to Jordan’s new sentence. At the initial sentencing, Jordan was

deemed a habitual violent felony offender under section 775.084(4). This section

dictates that the trial court sentence such an offender convicted of a second-degree

felony to “a term of years not exceeding 30, and such offender shall not be eligible

for release for 10 years.” § 775.084(4)(b)2. It is clear from this language that

while the ten-year mandatory minimum is required to be imposed, the trial court

had the discretion to sentence Jordan to anywhere from ten to thirty years’

imprisonment. See, e.g., Burdick v. State, 594 So. 2d 267, 270 n.8 (Fla. 1992)

(noting that when a defendant is classified as a habitual offender, the trial judge

maintains sentencing discretion). Additionally, although Jordan’s original

sentence of life imprisonment appears to demonstrate the trial judge’s intent to

sentence Jordan to the maximum allowable punishment, the judge was not

obligated to maintain that same intent at resentencing. Orta, 919 So. 2d at 604

(“Although the trial court originally pronounced its intention to sentence the

defendant to ‘the bottom of the guidelines,’ it was not obligated to do so.”);

Phillips v. State, 705 So. 2d 1320, 1322 (Fla. 1997) (quoting King v. Dugger, 555

So. 2d 355, 358-59 (Fla. 1990)) (“Phillips’ resentencing proceeding was a

‘completely new proceeding,’ and the trial court was therefore under no obligation

to make the same findings as those made in Phillips’ prior sentencing


                                         -9-
proceeding.”). Thus, the judicial discretion present in this case eliminates the

ministerial nature of the resentencing. Mullins, 997 So. 2d at 445.

       Although the resentencing here was not a ministerial act, the error is still

harmless because Jordan is serving a concurrent, true life sentence on the burglary

count and will suffer no practical consequences as a result of being resentenced in

his absence on the robbery count. Under these circumstances, Jordan is not

entitled to relief.

                                   CONCLUSION

       Resentencing Jordan in his absence was error because, under rule 3.180(a),

he was entitled to be present. However, the error is harmless because Jordan is

serving a concurrent, true life sentence on another count, with no practical

consequences. Accordingly, we approve the result, but not the reasoning of the

decision of the Third District below.

       It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY, J., concurs in result.

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

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

       Third District - Case No. 3D11-2385

       (Miami-Dade County)

                                         - 10 -
Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Miami
Bureau Chief, and Jay E. Silver, Assistant Attorney General, Office of the
Attorney General, Miami, Florida,

      for Respondent




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