ISIDRO G. GONZALEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Gonzalez challenged his re-sentence imposed following Heggs v. State, arguing he was denied counsel at the re-sentencing hearing. The court held that the denial of the right to counsel at a critical sentencing stage constitutes fundamental error that is never harmless, regardless of whether the issue was properly preserved.
The denial of the right to counsel at re-sentencing is fundamental error that is never harmless and warrants reversal. Although the issue was not properly preserved, the denial of counsel constitutes a due process error rather than a sentencing error, allowing it to be raised on appeal. The trial court erred in failing to appoint counsel at the re-sentencing hearing.
[1] The denial of the right to counsel is a fundamental error that can be raised on appeal even if not properly preserved.
[2] Once a trial court determines a defendant is entitled to re-sentencing, the full panoply of due process considerations attaches.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once a trial court determines that a defendant's sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches.”
Establishes that re-sentencing hearings trigger full constitutional protections including the right to counsel.
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Join FLexlaw to unlock all legal intelligenceAppellant was re-sentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000). He appeared at the re-sentencing hearing without counsel. Although A…
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PER CURIAM.
Appellant challenges his new sentence upon being re-sentenced pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000).
Although the issue of Appellant’s lack of representation during the re-sentencing hearing was not properly preserved for appeal, the denial of the right to counsel is fundamental error. See Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998) (holding that the denial of the right to counsel is fundamental error); see also May v. State, 623 So. 2d 601, 608 (Fla. 2d DCA 1993) (stating that the Sixth Amendment right to counsel is a fundamental right).
Once a trial court determines that a defendant’s sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches. See State v. Scott, 439 So. 2d 219, 220 (Fla.1983).
Sentencing is a critical stage of the criminal proceedings; thus, a sentencing hearing is mandatory. See id. at 221. As such, an indigent defendant is entitled to appointment of counsel at re-sentencing. See id.; see also McDonald v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996).
The lack of representation is not a sentencing error, but rather a due process error.
Thus, Appellant may properly raise this issue on appeal. Cf. Harvey v. State, 786 So. 2d 28 (Fla. 1st DCA 2001) (holding that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b)).
Regardless of whether Appellant requested 122 months in his original motion, he did not expressly waive his right to appointed counsel. There is no waiver of counsel in the record, therefore, the trial court erred in fading to appoint counsel at the re-sentencing hearing. Such error is never harmless. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) (“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”) (citations omitted); State v. DiGuilio, 491 So. 2d 1129, 1137 (Fla.1986) (“Denial of counsel is always harmful, regardless of the strength of the admissible evidence, and can be properly categorized as per se reversible.”).
Accordingly, we vacate Appellant’s sentence and remand for further re-sentencing.
BOOTH, WOLF and KAHN, JJ., concur.
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Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Holloway v. Arkansas, 435 U.S. 475 (U.S. 1978)
- State v. Scott, 439 So. 2d 219 (Fla. 1983)
- Gregor v. Gregor, 786 So. 2d 28 (Fla. 1st DCA 2001)
- Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998)
- MAY v. State, 623 So. 2d 601 (Fla. 2d DCA 1993)
- McDONALD v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996)
- Busl v. State, 679 So. 2d 1273 (Fla. 5th DCA 1996)