Summary
holding that the appellant is entitled to be present at sentencing whether the sentencing is the immediate result of an adjudication or the result of a successful 3.850 challenge
Summary of this case from Thompson v. StateOpinion
Case No. 4D00-2284
Opinion filed January 3, 2001
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward Garrison, Judge; L.T. Case No. 95-12476 CF A02 W.
Yoany A. Barcelo, Belle Glade, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
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, No. 4D00-2039, 2000 WL 1671444 at *1 (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.