       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 17, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-698
                          Lower Tribunal No. 14-5657
                             ________________


                            Ronald Jerome Lee,
                                    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, Cristina Miranda, Judge.

      Ronald Jerome Lee, in proper person.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.


Before SALTER, EMAS and LOGUE, JJ.

      EMAS, J.
      Ronald Jerome Lee appeals from a trial court order which granted his

motion to correct illegal sentence but which resentenced Lee in absentia and

without the presence of, or representation by, counsel. We reverse for a new

sentencing proceeding because Lee had a right to be present and to be represented

by counsel at the resentencing hearing in which the trial court had discretion in

determining the new sentence to be imposed.

      Lee was originally sentenced to forty years’ imprisonment for attempted

second-degree murder with a firearm, together with a twenty-year mandatory

minimum for discharge of a firearm during the commission of that crime.1 The

trial court ordered that the twenty-year mandatory minimum sentence for that

count be served consecutively to the twenty-year mandatory minimum sentences

imposed in two other counts (two counts of aggravated assault with a firearm, each

involving discharge of a firearm). At the time of Lee’s original sentencing, the

trial court believed it had no discretion and was required to order that the

mandatory minimum sentences be served consecutively. See Morgan v. State, 137

So. 3d 1075 (Fla. 3d DCA 2014) (quashed by Morgan v. State, 42 Fla. L. Weekly

S680 (Fla. May 26, 2017)); Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013)

(quashed by Williams v. State, 186 So. 3d 989 (Fla. 2016)).


1 See § 775.087(2)(d), Fla. Stat. (2014) (known as the 10/20/Life statute, it requires
a mandatory minimum sentence of twenty years where a defendant discharges a
firearm during the course of the commission of certain enumerated felonies).

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      Lee filed a motion to correct illegal sentence pursuant to rule 3.800(a),

contending in part that the forty-year sentence is illegal because the crime of

attempted second-degree murder with a firearm is a first-degree felony, punishable

by a maximum of thirty years.2 The trial court granted the motion to correct illegal

sentence, and resentenced Lee to thirty years’ imprisonment, with a twenty-year

mandatory minimum.         The trial court again ordered that the twenty-year

mandatory-minimum portion of the sentence be served consecutively to the

mandatory minimum sentences imposed on the aggravated assault counts. Neither

Lee nor his counsel were present for the resentencing proceeding.

      The State has properly and commendably conceded that, although the trial

court properly granted Lee’s motion to correct illegal sentence, the trial court erred

in resentencing Lee in absentia and without the presence of, and representation by,

counsel. Where a trial court grants a motion to correct an illegal sentence, a

defendant has the right to be present at the resentencing and to be represented by

counsel. Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Gonzalez v. State, 221

So. 3d 1225 (Fla. 3d DCA 2017); Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d


2 See §§ 777.04(4)(c), 782.04, Fla. Stat. (2014) (together providing that attempted
second-degree murder is a second-degree felony, punishable by a maximum of
fifteen years); § 775.087, Fla. Stat. (reclassifying a second-degree felony to a first-
degree felony for use of a firearm); § 775.082(3)(b)1. (providing that the maximum
sentence for a first-degree felony is “a term of imprisonment not exceeding 30
years or, when specifically provided by statute, by imprisonment for a term of
years not exceeding life imprisonment”).

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DCA 2008) (holding that a “new sentencing hearing is a critical stage of the

proceedings, and due process requires he be present and assisted by counsel”). See

also 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”). While a

violation of this right is subject to a harmless error analysis, Jordan, 143 So. 3d at

338, the State acknowledges, and we agree, that the error in this case is not

harmless, as the trial court had discretion in imposing a corrected, legal sentence.

See id. at 339-40 (holding that “a resentencing at which the trial judge has

discretion is not a ministerial act”).

      The trial court had the authority to impose a sentence less than the maximum

legal sentence of thirty years. Although the original sentence of forty years (and

the corrected sentence of thirty years) would appear to demonstrate the trial court’s

intent to impose the maximum allowable sentence, the absence of Lee and his

counsel from the resentencing deprived Lee of the opportunity to present evidence

and argument to the trial court that some sentence less than the maximum is

appropriate.

      Further, since the time of Lee’s original sentence, our decision in Morgan,

and the Fourth District’s decision in Williams, have been quashed by the Florida

Supreme Court, and the law is now clear that the trial court has the discretion to

order the twenty-year mandatory minimum portion of Lee’s sentence to be served



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concurrently with, rather than consecutively to, the other mandatory minimum

sentences imposed in this case. See Morgan, 42 Fla. L. Weekly S680 at *1;

Williams, 186 So. 3d at 995; Charlemagne v. State, 223 So. 3d 1124 (Fla. 3d DCA

2017); Martinez-Castaneda v. State, 225 So. 3d 847 (Fla. 3d DCA 2016). Indeed,

the trial court’s resentencing order acknowledges this clarification of the law, but

concludes that the mandatory minimum portion of the sentence should be served

consecutively to the mandatory minimum sentences imposed for the aggravated

assault convictions. Nevertheless, because this determination involves the exercise

of the trial court’s discretion, Lee and his counsel were entitled to be present at the

resentencing and to present evidence and argument to the trial court on the issue.3

      We therefore vacate the corrected sentence imposed for Lee’s conviction for

attempted second-degree murder, and remand for the trial court to conduct a

resentencing proceeding on that count and thereafter impose sentence. Lee shall

be present for that proceeding and shall be represented by counsel. We express no

opinion with regard to what sentence should be imposed at resentencing.




3 As discussed earlier, at the time of the original sentencing, the trial court followed
the then-existing law, which gave the trial court no discretion and required it to
impose the mandatory minimum sentence consecutively.                     Thus, at this
resentencing proceeding, Lee and his counsel will be afforded the opportunity to
present to the trial court, for the first time, evidence and argument in support of a
concurrent, rather than a consecutive, mandatory minimum sentence on this count.
See Mason v. State, 210 So. 3d 120 (Fla. 2d DCA 2016).

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