                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

DEMETRIUS DALLAS,                        NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
        Appellant,                       DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D16-0133

STATE OF FLORIDA,

        Appellee.

_____________________________/

Opinion filed January 17, 2017.

An appeal from an order of the Circuit Court for Duval County.
Mallory D. Cooper, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant; Demetrius Dallas, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

        In this Anders 1 appeal, the state concedes that the trial court should not have

relied upon both a prior felony conviction and a violation of probation of that same

conviction as the two qualifying convictions necessary to support habitual felony


1
    Anders v. California, 386 U.S. 738 (1967).
offender (“HFO”) enhancement of the appellant’s instant sentence. 2 It further

agrees that the appellant must be resentenced.

       We therefore reverse and remand for the appellant to be resentenced. See

State v. Collins, 985 So. 2d 985 (Fla. 2008) (explaining that allowing the state a

second opportunity to prove qualification for HFO enhancement does not violate

double jeopardy, and that as long as the sentence imposed at resentencing is not

more severe there is no presumption of vindictiveness). As the resentencing will

not be a ministerial act and involves court discretion, the appellant must be present

and represented by counsel. See Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014)

(explaining that where the trial court has discretion regarding sentence imposition a

defendant must be present); cf. Ducker v. State, 197 So. 3d 1095, 1096 (Fla. 1st

DCA 2016) (Anders appeal in which the court stated that upon remand the

appellant need not be present because the court’s actions of correcting scrivener’s

errors would be purely ministerial). The state may choose to again attempt to

prove that the appellant meets the criteria for HFO enhancement. See Collins at

994.




2
  The record indicates that although counsel improperly conceded that the felony
offense and the violation of probation for the same offense could serve as the two
necessary qualifying prior felony convictions, the appellant, himself, argued that
they could not.
                                         2
     REVERSED AND REMANDED.

ROBERTS, C.J., JAY and WINSOR, JJ., CONCUR.




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