       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RICARLO A. BETTY,
                               Appellant,

                                        v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-1864

                           [December 20, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No. 56-2007-CF-
000147A.

   Ricarlo A. Betty, Arcadia, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Ricardo A. Betty (“Appellant”) appeals the order denying his motion to
set a hearing date for the de novo sentencing hearing granted as post-
conviction relief. Because the original sentencing judge summarily and
improperly found a de novo sentencing hearing “unnecessary” after a
different trial court judge ruled such relief was warranted, we reverse and
remand for a new sentencing hearing before a different judge.

                                Background

   In 2008, Appellant was convicted after trial of two counts of robbery
with a deadly weapon while masked and was sentenced to life in prison on
each count. Appellant’s judgment and sentence were affirmed on direct
appeal. Betty v. State, 22 So. 3d 558 (Fla. 4th DCA 2009).

    In 2011, Appellant moved for post-conviction relief raising several
grounds. The motion was heard by a judge who did not preside over the
trial and sentencing. The trial court denied post-conviction relief except
for one ground, in which Appellant asserted ineffective assistance of
counsel for failure to advise Appellant of his youthful offender eligibility
and argue for a youthful offender sentence. The trial court found sufficient
prejudice on that ground to grant Appellant a de novo sentencing hearing
in front of the original sentencing judge to enable that judge to consider
whether Appellant should be classified and sentenced as a youthful
offender. The written order granting relief stated:

      The parties may contact the sentencing judge for hearing time
      at a mutually convenient time and/or file an appeal within
      thirty days.

(emphasis added).

   Appellant appealed the denial of post-conviction relief on the same
grounds for which relief was not granted, before seeking a new sentencing
hearing. This Court per curiam affirmed the denial as to those grounds.
Betty v. State, 138 So. 3d 1037 (Fla. 4th DCA 2014).

    After his post-conviction relief appeal was resolved, Appellant filed a pro
se motion to set a hearing date for the de novo sentencing hearing granted
in the trial court’s 2011 order. Appellant’s motion for a de novo sentencing
was denied without a hearing by the original sentencing court. The order
denying the motion stated, without any citation to authority, that the
original sentencing court “d[id] not believe” it had jurisdiction to hold a
sentencing hearing after Appellant filed the appeal of the post-conviction
order. Alternatively, the original sentencing court found that even if it did
have jurisdiction, a de novo hearing was “unnecessary,” reasoning that the
original sentencing court had presided over Appellant’s trial and
sentencing and had reviewed the transcripts of both proceedings, and that
regardless of any possible youthful offender argument trial counsel could
make, the original sentencing court would not have sentenced Appellant
as a youthful offender. The original sentencing court noted that Appellant
scored 13.9 years in prison with a minimum mandatory of ten years, but
that it had imposed two life sentences on Appellant, attaching portions of
the sentencing transcript reflecting the sentence. Therefore, the original
sentencing court denied Appellant’s motion for a de novo resentencing
hearing.

   Appellant gave notice of appeal of the order denying a de novo
sentencing.

                             Appellate Analysis

   As our supreme court has explained:


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      “[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). . . . 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).

Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (first alteration in original).

   “A violation of the right to be present is subject to a harmless error
analysis.” Id. at 338-39 (citing 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.” Id. at 339 (quoting Garcia v. State, 492 So.
2d 360, 364 (Fla. 1986)).

   Appellant argues on appeal that the sentencing judge erred in denying
his motion for de novo sentencing hearing after post-conviction relief was
granted based on ineffective assistance of counsel at sentencing.
Appellant contends a de novo sentencing hearing was required for
consideration of sentencing him as a youthful offender, with Appellant and
his counsel present to offer evidence and argument on the issue. Appellant
further argues that resentencing in the procedural context of this case
would not constitute a ministerial act, because resentencing would require
an exercise of the trial court’s discretion.

   We agree with Appellant that, once the trial court determines that de
novo resentencing is appropriate, the defendant is “entitled to a de novo
sentencing hearing with the full array of due process rights.” Webb v.
State, 805 So. 2d 856, 857 (Fla. 2d DCA 2001) (quoting St. Lawrence v.
State, 785 So. 2d 728, 729-30 (Fla. 5th DCA 2001)). It is further well
established that “a defendant is entitled to be present and represented by
counsel at [a] resentencing proceeding . . . unless resentencing involves

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only a ministerial act.” Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th
DCA 2016) (citing Jordan, 143 So. 3d at 338). Furthermore, “[a]
resentencing at which the trial judge has judicial discretion is not a
ministerial act.” Id. (citing Jordan, 143 So. 3d at 339-40).

   In this case, it was undisputed that Appellant was eligible to be
classified and sentenced as a youthful offender, and the trial court
granting post-conviction relief determined that he was entitled to a de novo
sentencing hearing. We agree with Appellant that resentencing would not
be a ministerial act. Our supreme court has held that although an original
sentence of life imprisonment may appear to demonstrate a trial judge’s
intent to sentence a defendant to the maximum allowable punishment, the
judge is “not obligated to maintain that same intent at resentencing.”
Jordan, 143 So. 3d at 340 (citing Orta v. State, 919 So. 2d 602, 604 (Fla.
3d DCA 2006) (“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 proceeding.”)). “Thus, the judicial
discretion present in this case eliminates the ministerial nature of the
resentencing.” Jordan, 143 So. 3d at 340 (citing Mullins v. State, 997 So.
2d 443, 445 (Fla. 3d DCA 2008)).

    The State’s argument that Appellant waived the de novo sentencing
hearing by choosing to appeal the denial of post-conviction relief on other
grounds lacks merit. The State supports this proposition by referring to
the trial court’s language in the order that: “The parties may contact the
sentencing judge for hearing time at a mutually convenient time and/or
file an appeal within thirty days.” (emphasis added). However, the State
ignores the “and” portion of the “and/or” language and simply argues that
the wording of the order “clearly states that Appellant was told he could
set the case down for a hearing or file an appeal.” We read the “or”
language to contemplate the possibility that Appellant may decide not to
appeal the claims for post-conviction relief denied and be satisfied with a
de novo sentencing hearing. We read the “and” language to contemplate
the possibility that Appellant may appeal the claims denied and
subsequently proceed with a de novo sentencing hearing if the appeal
failed. We do not agree with the State that we should read the “and/or”
language to mean the trial court was granting post-conviction relief on one
ground, conditioned on Appellant not filing an appeal as to the other
grounds.


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   We also disagree with the State’s argument that the sentencing court
properly determined that a de novo sentencing hearing was “unnecessary”
because the sentencing judge, in the order denying the hearing, indicated
that he would not have sentenced Appellant as a youthful offender, even
had the argument been made at sentencing. While it is true the decision
whether to impose a youthful offender sentence was up to the judge’s
discretion, Appellant was entitled to a de novo hearing in which he could
present any further evidence not presented at the original sentencing and
make arguments not previously raised. The original sentencing court
could not properly exercise discretion on the issue without hearing such
evidence and argument first.

   We therefore quash the order denying Appellant’s motion for a de novo
sentencing hearing and remand the case for further proceedings before a
judge other than the original sentencing judge. Appellant, represented by
counsel, must be present for the de novo sentencing. We recognize the
order granting post-conviction relief specifically ordered a de novo
sentencing by the original sentencing judge.        However, given the
announced decision by the original sentencing judge before considering
the evidence and arguments to be presented on the issue, the appearance
of prejudgment must be avoided and sentencing by a different judge is
required.

   Reversed and remanded with instructions.

DAMOORGIAN and FORST, JJ., concur.

                          *          *        *

   Not final until disposition of timely filed motion for rehearing.




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