YOANY BARCELO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a criminal defendant has a right to be present at sentencing, and re-sentencing in absentia is error.
Barcelo was re-sentenced in absentia after a post-conviction relief motion was granted. The re-sentencing occurred in chambers without a hearing.…
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PER CURIAM.
We reverse Barcelo’s sentence and remand for re-sentencing. The state concedes that it was error to re-sentence him in absentia.
Barcelo was sentenced to ten years in prison on two counts of robbery and two counts of aggravated assault with a firearm. He moved for post-conviction relief under Florida Rule of Criminal Procedure 3.850, citing Heggs v. State, 759 So. 2d 620 (Fla.2000). The court agreed Barcelo had been incorrectly sentenced under the invalid 1995 guidelines, determined that his case fell within the window of opportunity set forth in Trapp v. State, 760 So. 2d 924 (Fla.2000), and vacated the sentence. It then re-sentenced him to 110 months based on the 1994 guidelines, which set forth a range of 66-110 months. This re-sentencing was “done and ordered in chambers,” and no hearing was held.
A criminal defendant has a right to be present at sentencing, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful 3.850 challenge. State v. Scott, 439 So. 2d 219, 221 (Fla.1983); see also Jackson v. State, 767 So. 2d 1156, 1160 (Fla.2000); Brice v. State, 770 So. 2d 740 (Fla. 4th DCA 2000). We note that an indigent defendant also is entitled to appointment of counsel at sentencing. See Scott, 439 So. 2d at 221; Taylor v. State, 745 So. 2d 341, 342 (Fla. 3d DCA 1999)(citing Griffin v.. State, 517 So. 2d 669, 670 (Fla.1987)).
GUNTHER, STONE, and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001)…584 (Fla. 4th DCA 1997). However, “[a] criminal defendant has a right to be present at sentencing, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful 3.850 challenge.” Barcelo v. State, 774 So. 2d 895, 896 (Fla. 4th DCA 2001). With the exception of sentence corrections, it is fundamental error to resentence a defendant in his or her absence. See Ellison v. State, 593 So. 2d 1205, 1206 (Fla. 5th DCA 1992); Keller v. State, 432 So. 2d 672, 673 (Fla…
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Griffin v. State, 979 So. 2d 1253 (Fla. 4th DCA 2008)…So. 2d 1221, 1223 (Fla. 4th DCA 2001) (holding that a defendant has a right to be present at sentencing, whether the sentence to be “imposed” results from adjudication of guilt or from a successful rule 3.850 motion) (quoting from Barcelo v. State, 774 So. 2d 895, 896 (Fla. 4th DCA 2001)); Wilson v. State, 947 So. 2d 1225, 1226 (Fla. 1st DCA 2007) (direct appeal from sentence “imposed” after partial granting of rule 3.800(a) motion). Furthermore, if there is a question as to precisely what is meant by the r…
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Smith v. State, 820 So. 2d 1052 (Fla. 3d DCA 2002)…the Attempted Robbery. The court ultimately appointed the Public Defender’s office to represent the defendant on appeal. The State correctly concedes that re-sentencing the defendant without the benefit of counsel was error. See Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001); Taylor v. State, 745 So. 2d 341 (Fla. 3d DCA 1999). Accordingly, we remand this case for re-sentencing, at which time the defendant will be present and represented by the Public Defender. Reversed and remanded.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- State v. Scott, 439 So. 2d 219 (Fla. 1983)
- Jackson v. State, 767 So. 2d 1156 (Fla. 2000)
- Griffin v. State, 517 So. 2d 669 (Fla. 1987)
- Taylor v. State, 745 So. 2d 341 (Fla. 3d DCA 1999)
- Dwain John Brice v. State, 770 So. 2d 740 (Fla. 4th DCA 2000)
- Rodriguez v. State, 770 So. 2d 740 (Fla. 4th DCA 2000)