IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DEMETRIUS DALLAS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0133
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 17, 2017.
An appeal from an order of the Circuit Court for Duval County.
Mallory D. Cooper, Judge.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant; Demetrius Dallas, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
In this Anders 1 appeal, the state concedes that the trial court should not have
relied upon both a prior felony conviction and a violation of probation of that same
conviction as the two qualifying convictions necessary to support habitual felony
1
Anders v. California, 386 U.S. 738 (1967).
offender (“HFO”) enhancement of the appellant’s instant sentence. 2 It further
agrees that the appellant must be resentenced.
We therefore reverse and remand for the appellant to be resentenced. See
State v. Collins, 985 So. 2d 985 (Fla. 2008) (explaining that allowing the state a
second opportunity to prove qualification for HFO enhancement does not violate
double jeopardy, and that as long as the sentence imposed at resentencing is not
more severe there is no presumption of vindictiveness). As the resentencing will
not be a ministerial act and involves court discretion, the appellant must be present
and represented by counsel. See Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014)
(explaining that where the trial court has discretion regarding sentence imposition a
defendant must be present); cf. Ducker v. State, 197 So. 3d 1095, 1096 (Fla. 1st
DCA 2016) (Anders appeal in which the court stated that upon remand the
appellant need not be present because the court’s actions of correcting scrivener’s
errors would be purely ministerial). The state may choose to again attempt to
prove that the appellant meets the criteria for HFO enhancement. See Collins at
994.
2
The record indicates that although counsel improperly conceded that the felony
offense and the violation of probation for the same offense could serve as the two
necessary qualifying prior felony convictions, the appellant, himself, argued that
they could not.
2
REVERSED AND REMANDED.
ROBERTS, C.J., JAY and WINSOR, JJ., CONCUR.
3