       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 13, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1486
                         Lower Tribunal No. 01-32375
                             ________________


                              Jacques Edward,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Veronica A.
Diaz, Judge.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

     Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.


Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.

      EMAS, C.J.
      Jacques Edward appeals from a de novo resentencing hearing at which a

successor judge found that Edward qualified as a habitual violent felony offender

and sentenced him to forty years in state prison, the exact same sentence imposed

by the original trial court judge.

      On appeal, Edward contends that the successor judge failed to exercise her

discretion in fashioning the appropriate sentence at this “clean slate” resentencing

proceeding, and instead simply re-imposed the sentence imposed at the original

sentencing. Edward asserts that the successor judge appeared to be under the

belief she did not have the same discretion that the original judge had in

determining the appropriate sentence to impose on Edward. We agree.

      Upon our review of the record, including the transcript of the resentencing

hearing, we conclude that the successor judge was indeed under the impression

that, once it concluded that Edward qualified as a habitual violent felony offender,1

she should defer to the sentence imposed by the original judge. At the conclusion

of the resentencing hearing, and after entertaining defense counsel’s argument for a

1 We reject Edward’s additional claim that his forty-year sentence (with a fifteen-
year mandatory minimum) as a habitual violent felony offender was illegal.
Edward’s prior conviction and prison sentence in F91-36012 alone qualified him to
be sentenced in the instant case as a habitual violent felony offender under section
775.084(2), Florida Statutes (2001). However, Edward is correct that the trial
court erred in relying upon F92-39428A; it was not a “qualified offense” under the
habitual violent felony offender statute, because the instant offense was not
“committed within 5 years of the defendant’s release from a prison sentence . . .
that is imposed as a result of a prior conviction for an enumerated felony,” as
required under section 775.084(1)(b)2.b.

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lesser sentence, the successor judge made the following statements immediately

before imposing the same forty-year sentence imposed by the original judge:

      [Defense counsel], while I am going to agree with you that forty years
      is an awfully long time for what appears to be trafficking of a quarter
      of a kilo of cocaine, we’re here today only because [the original
      judge’s] pronouncement of the defendant’s sentence was not clear.

      I don’t see a reason, whereby, I can or should substitute my thoughts
      for that of the trial judge, who had the opportunity to view the
      defendant and the proceedings years ago.

(Emphasis added).

      Edward’s attorney reminded the successor judge that this was a de novo

resentencing, and that she possessed the same discretion as the original judge and

was not limited or constrained by the original judge’s forty-year sentence. The

successor judge, however, appeared to reject this position:

      No. I think [the original judge] had ample opportunity to view the
      case and ample opportunity to be there for the proceedings, so I don’t
      see that you have presented sufficient evidence to have me change
      that [].

      A de novo resentencing means the defendant is entitled to a new sentencing

hearing with “the full array of due process rights.” State v. Collins, 985 So. 2d

985, 989 (Fla. 2008). A de novo resentencing “must be a ‘clean slate,’ meaning

that the defendant’s vacated sentence becomes a ‘nullity’ and his resentencing

should proceed de novo on all issues bearing on the proper sentence.” Galindez v.

State, 955 So. 2d 517, 525 (Fla. 2007). Importantly for our purposes, this means



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that the trial court “is under no obligation to make the same findings as those made

in a prior sentencing proceeding.” Morton v. State, 789 So. 2d 324, 334 (Fla.

2001).

      As applied in the instant case it means that, while the trial court must declare

Edward to be a habitual violent felony offender if the State proves he meets the

statutory criteria, the trial court nevertheless retains the discretion not to impose a

habitual violent felony offender sentence. See § 775.084(3)(b) (providing: “The

court, in conformity with the procedure established in paragraph (3)(a), may

sentence the habitual violent felony offender as follows . . . ”) (emphasis added);

State v. Hudson, 698 So. 2d 831 (Fla. 1997); Cotton v. State, 588 So. 2d 694 (Fla.

3d DCA 1991); Wright v. State, 599 So. 2d 179 (Fla. 2d DCA 1992).

      It also means that the original judge’s sentence was not binding in any way

on the successor judge’s determination of an appropriate sentence at the de novo

resentencing. The transcript of the resentencing in the instant case reflects that the

successor judge mistakenly believed that, upon determining that Edward qualified

as a habitual violent felony offender, she should re-impose the same sentence

imposed by the original judge, according the original sentence a presumption of

correctness which had to be overcome by the defense at the resentencing. This

was erroneous, and the successor judge was instead required to treat this as a clean




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slate sentencing, consider the evidence and the arguments anew, and independently

determine the appropriate sentence.

      We therefore vacate the sentence, and reverse and remand for a de novo

resentencing. And because we are remanding (and to minimize the likelihood that

it will return to us on this same issue), we point out (as discussed supra at note 1)

that the trial court improperly found Edward’s prior felony conviction in F92-

39428A to be a qualifying offense under the habitual violent felony offender

statute. Edward was released from his prison sentence for that offense more than

five years prior to the commission of the instant offense. Although the trial court

also (and properly) found Edward’s prior offense and prison sentence in F91-

36012 qualified him as a habitual violent felony offender, it is unclear from the

transcript of the proceedings whether the trial court relied upon both offenses in

imposing sentence. Upon remand and at the de novo resentencing, the trial court

shall not rely upon F92-39428A as a qualifying offense under the habitual violent

felony offender statute.

      Reversed and remanded with directions to conduct a de novo resentencing,

at which Edward shall be present and represented by counsel.




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