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
2
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
3
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
4
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.
5
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.
6
“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
7
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).
8
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.
9