       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 4, 2017.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D15-2629
                         Lower Tribunal No. 09-34892
                             ________________


                              Keith Thompson,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Cristina
Miranda, Judge.

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

     Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.


Before WELLS, LAGOA, and LOGUE, JJ.

      LAGOA, J.

      Keith Thompson (“Thompson”) appeals from an order revoking his

probation and sentencing him to fifteen years in state prison. We reverse and
remand with directions that Thompson be resentenced before another judge, at

which Thompson must be present and represented by counsel.

I.    FACTUAL AND PROCEDURAL HISTORY

      This same issue has been before this Court previously, and the underlying

facts are set forth in that opinion. See Thompson v. State, 172 So. 3d 527 (Fla. 3d

DCA 2015). Briefly, Thompson was sentenced to three years of probation and

ordered to complete a behavior modification program at the Spectrum residential

care facility.   Thompson was charged with violating his probation by (a)

threatening two Spectrum staff members, one of whom was his therapist, with

violence; (b) having a knife under the dresser drawer in his room; (c) being

discharged from the Spectrum program due to his acts of aggression to others by

threats of bodily harm; and (d) changing his residence without first receiving

consent from his probation officer. After a probation violation hearing, the trial

court revoked Thompson’s probation and sentenced him to fifteen years in prison.

In revoking Thompson’s probation, the trial court relied upon several grounds:

threatening staff members with violence; the fact that a knife was found in

Thompson’s room in violation of the Spectrum rules; bringing an impermissible

amount of money into the Spectrum facility; and being in possession of an over-

the-counter topical medication which was not permitted. See id. at 529.

      Thompson appealed the trial court’s order revoking his probation and

sentencing him to fifteen years in state prison. This Court affirmed the revocation

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of probation, but “reverse[d] on two points regarding the basis for the revocation

and remand[ed] for resentencing.” Id. at 528. Specifically, this Court found that

the State failed to prove that Thompson had constructive possession of the knife,

and therefore the trial court erred in using the possession of the knife as a basis for

revoking his probation. Id. at 530. Additionally, this Court found that the alleged

infractions of possession of money and over-the-counter medication were not

charged in the affidavit, and as such, the trial court was not permitted to revoke

Thompson’s probation based upon this conduct. Id.            As a result, this Court

affirmed the revocation of probation as to the threats of violence made by

Thompson and his failure to complete the Spectrum program, but reversed

             as to the possession of the knife, the possession of money
             in an amount higher than allowed at the Spectrum
             facility, and possession of the over-the-counter topical
             medication. Because we reverse two of the grounds for
             the sentence, and one of those grounds, possession of the
             knife, was substantial, we vacate the sentence and
             remand for resentencing, as it is unclear from the
             record whether the trial court would have imposed the
             same sentence on the remaining violations. See Gray v.
             State, 170 So. 3d 890 (Fla. 3d DCA 2015); Secure v.
             State, 432 So. 2d 630 (Fla. 3d DCA 1983).

Id. (emphasis added).




      A. August, 26, 2015, hearing—Thompson resentenced in absentia and
         without counsel prior to this Court’s mandate



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      Prior to the issuance of this Court’s mandate, the trial court held a hearing

on August 26, 2015.1 Although the assistant state attorney was present, neither

Thompson nor his attorney were present at the hearing. The trial court stated that

the case was on remand because

             the record wasn’t clear if I was sentencing the defendant
             to the same sentence based on the violation, failing to
             complete the Spectrum and threatening the Spectrum
             staff members, the therapist without the information
             about bringing the additional medication in and the knife.

The trial court proceeded to resentence Thompson to fifteen years in prison:

             All of those reasons was why Spectrum kicked him out,
             but the violation was specifically that he failed to
             complete the Spectrum Program; that he was required as
             a special condition and kicked out of the program as well
             as the threats he made to the employees two different
             ones and that’s what the sentence is based on. So he is
             resentenced today to the same sentence of the fifteen
             years. I want to clarify the thought process behind it.

      B. September 2, 2015, hearing and Thompson’s Motion to Set Aside
         Illegal Sentence

      On September 2, 2015, the trial court conducted another hearing.          The

assistant public defender stated that Thompson’s attorney of record was not aware

that Thompson had been immediately resentenced after the issuance of Thompson,

and asked to reset the hearing. The trial court responded that “[w]e didn’t need the

attorney to address it. It was for the court to clarify the sentence.”2

1This Court’s mandate in Thompson issued on August 28, 2015.
2 At the September 2, 2015, hearing, the trial court stated that “someone stood in
for [Thompson’s attorney] from the Public Defenders [sic] Office” at the August
26, 2015, hearing. The record reflects no such appearance from the Public
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      On September 18, 2015, Thompson filed a motion to set aside illegal

sentence.   Thompson argued that the trial court did not have jurisdiction to

resentence him on August 26, because as of that date, this Court’s mandate had not

yet issued. Thompson also argued that his absence from his resentencing deprived

him of due process, and that he was entitled to counsel for his resentencing.

Thompson requested that the trial court set aside the sentence imposed on August

26 and conduct a sentencing hearing in accordance with this Court’s remand, and

that he be present for such resentencing as it was not merely a ministerial act.

      C. October 29, 2015, hearing—Thompson resentenced in absentia again,
         and in reliance on transcript of August 26, 2015, hearing

      A hearing on the motion to set aside illegal sentence was held on October

29, 2015. The trial judge began the hearing by announcing that

                there was some confusion from the date of the mandate
                and it had not been issued yet and it was a bit premature.
                So, the last sentence imposed will be vacated, but I’m
                going to use the record from the last hearing to restate the
                issues and readdress the issues in the original motion.

Regarding Thompson’s possession of the knife, money, and medication, the trial

court stated:

                So, I didn’t consider them in my sentence as additional
                violations. And that’s why I clarified the sentence the
                last time it was here. The reason why I granted the
                vacate is because I didn’t realize the date of the mandate
                and that the defendant wasn’t here. Nobody made issue

Defender’s Office, and the State properly concedes that the record reflects that no
attorney appeared for Thompson at the August 26, 2015, hearing at which he was
resentenced.
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             of it and I sentenced him. So, I clarified and
             resentenced him to the same thing and relying on the
             transcript of the last hearing as well as for my reasons
             and I’m going to resentence him today to adjudication,
             fifteen years state prison as a habitual felony offender.

(emphasis added). Thompson’s attorney argued that it was a violation of due

process for the trial court to rely upon findings made at a hearing where neither

Thompson nor his attorney were present. The trial court imposed a sentence of

fifteen years state prison. This appeal ensued.

II.    ANALYSIS

       “[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); accord Jordan v. State, 143 So. 3d 335

(Fla. 2014); Dunbar v. State, 89 So. 3d 901 (Fla. 2012). “This right extends to

‘any stage of the criminal proceeding that is critical to its outcome if [the

defendant's] presence would contribute to the fairness of the procedure.’” Jackson,

767 So. 2d at 1159 (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).

Indeed, a defendant’s right to be present at sentencing is explicitly set forth in

Florida Rule of Criminal Procedure 3.180(a)(9), which requires the defendant’s

presence “at the pronouncement of judgment and the imposition of sentence.” The

Supreme Court of Florida has extended a defendant’s right to be present to

resentencing hearings. Jordan, 143 So. 3d at 338; see also Dunbar 89 So. 3d at

907.

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

analysis.” Jordan, 143 So. 3d at 338; accord Smithers v. State, 826 So. 2d 916,

927 (Fla. 2002) (stating that violation of the right to presence is subject to harmless

error analysis and that the proceeding “will only be reversed on this basis if

‘fundamental fairness has been thwarted’” (quoting Kearse v. State, 770 So. 2d

1119, 1124 (Fla. 2000))). A defendant’s absence at sentencing will be harmless

error if the trial court is merely conducting a ministerial act, such as entering a

written sentence where none exists or changing the written sentence to conform to

the oral pronouncement of sentence. See Jordan, 143 So. 3d at 339; McGough v.

State, 876 So. 2d 26 (Fla. 1st DCA 2004). “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.”

Jordan, 143 So. 3d at 339 (emphasis in original); see also Burgess v. State, 182 So.

3d 841, 842 (Fla. 4th DCA 2016) (“A resentencing at which the trial judge has

judicial discretion is not a ministerial act, and thus Appellant's presence at

resentencing here is required.”).

      The proceedings in the trial court on remand from this Court’s directive in

Thompson constitute error in several significant ways.          First, the trial court

misinterpreted this Court’s opinion in Thompson as requiring only that it “clarify”

whether the same sentence would have been imposed based upon the two

remaining violations of probation, i.e., the threats of violence made by Thompson

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and his failure to complete the Spectrum program.         On remand, this Court,

however, specifically directed the trial court to resentence Thompson, not simply

to clarify whether the same sentence would have been imposed. See 172 So. 3d at

530 (stating that “we vacate the sentence and remand for resentencing”). As a

result, due process considerations attached, and Thompson had a right to be

physically present at his resentencing.       We cannot conclude that Thompson’s

absence was harmless error, especially given that our direction to resentence

Thompson was based upon the fact that one of the grounds for Thompson’s

original sentence upon which this Court reversed—possession of a knife—was

“substantial.” 172 So. 3d at 530.

      Second, the trial court compounded its error by resentencing Thompson in

reliance upon the transcript from the August 26, 2016, hearing at which both

Thompson and his counsel were absent.3 See Payne v. State, 38 So. 3d 827, 828

(Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a

resentencing hearing held to correct a judicial error, the trial court commits

fundamental error.”); see also Frison v. State, 76 So. 3d 1103, 1104 (Fla. 5th DCA

2011) (stating that full panoply of due process considerations apply at

3 Although the trial court subsequently vacated the sentence initially imposed at
the August, 26, 2015, hearing, we note that the trial court lacked jurisdiction to
sentence Thompson on August 26 as this Court had not yet issued its mandate in
Thompson. See Tucker v. State, 633 So. 2d 1147 (Fla. 2d DCA 1994) (finding
that trial court lacked jurisdiction to resentence defendant after successful appeal
where trial court resentenced defendant prior to mandate being issued); see also
Colonel v. Reed, 379 So. 2d 1297 (Fla. 4th DCA 1980).

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resentencing, including appointment of counsel); Mullins v. State, 997 So. 2d 443,

445 (Fla. 3d DCA 2008) (“[T]he defendant has the right to be present and have

assistance of counsel at the new sentencing hearing.”).

IV.   CONCLUSION

      Accordingly, we once again vacate the sentence entered by the trial court

and remand for resentencing on the remaining violations of probation. “[B]ecause

a resentencing is a new proceeding, the court is not limited by the evidence

originally presented,” and Thompson is entitled to a full, de novo sentencing

hearing, at which time both sides may present new evidence and argument on the

issue of a proper sentence. State v. Collins, 985 So. 2d 985, 989 (Fla. 2008);

accord Lucas v. State, 841 So. 2d 380, 387 (Fla. 2003) (“[A] resentencing court is

not limited by evidence presented (or not presented) in . . . the original . . .

sentencing phase.”). Thompson must be both present and represented by counsel

at the resentencing hearing. We further direct that Thompson be resentenced

before a different judge.

      Reversed and remanded for resentencing.




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