NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DANIEL LEON HEATLEY, a/k/a )
DANIEL LEON HEATLY, )
)
Appellant, )
)
v. ) Case No. 2D16-4562
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 25, 2019.
Appeal from the Circuit Court for
Hillsborough County; Thomas P. Barber,
Judge.
Ita M. Neymotin, Regional Counsel, Second
District, and Joseph Thye Sexton, Assistant
Regional Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Fort
Myers, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona
Beach, for Appellee.
KHOUZAM, Chief Judge.
Daniel Leon Heatley, a/k/a Daniel Leon Heatly, appeals his sentences
entered on remand from Heatly v. State,
192 So. 3d 584 (Fla. 2d DCA 2016). Because
the circuit court erred in declining to consider Heatley's presentence investigation report
(PSI) at a full de novo resentencing hearing, we reverse and remand. We affirm without
comment as to Heatley's remaining claim.
Heatley was convicted of first-degree arson and burglary of an unoccupied
dwelling. On the arson count, he was sentenced to life in prison as a habitual felony
offender (HFO) with a thirty-year mandatory minimum term as a prison releasee
reoffender (PRR). On the burglary count, he was sentenced to a concurrent thirty years
in prison with a fifteen-year mandatory minimum term as a PRR. This court affirmed
Heatley's convictions and sentences on direct appeal. Heatly v. State,
177 So. 3d 615
(Fla. 2d DCA 2015) (table decision).
Heatley filed a petition alleging ineffective assistance of appellate counsel.
Heatly, 192 So. 3d at 584. This court granted his petition in part, reversed his
sentences, and remanded for resentencing before a different judge. Id. at 585. On
remand, a de novo resentencing hearing was held. The court again found that Heatley
qualified as a PRR and a HFO. Heatley was sentenced to the same sentences that he
originally received, and he filed the instant appeal.
During the pendency of this appeal, Heatley filed two motions to correct
sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his first
such motion, Heatley correctly pointed out that it was error to resentence him as a HFO
without either reviewing his original PSI or ordering a new one. The court granted
Heatley's motion and held a new resentencing hearing. However, at that hearing the
court only considered the PSI and declined to conduct a full de novo resentencing,
instead relying on the State's evidence from the previous hearing. Heatley then filed a
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second rule 3.800(b)(2) motion, arguing that he was entitled to a full de novo
resentencing hearing at which his PSI would be considered. The court erroneously
denied this motion.
"The trial court's failure to consider a mandatory presentence investigation
report before sentencing a defendant is a sentencing error that can be preserved via the
filing of a rule 3.800(b) motion." Albarracin v. State,
112 So. 3d 574, 574 n.1 (Fla. 4th
DCA 2013); see also White v. State,
271 So. 3d 1023, 1027 (Fla. 4th DCA 2019)
(same). Here, Heatley was entitled to have the court consider his PSI at resentencing
pursuant to section 775.084(3)(a)(1), Florida Statutes (2018), which provides:
(3)(a) In a separate proceeding, the court shall determine if
the defendant is a habitual felony offender or a habitual
violent felony offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence
investigation prior to the imposition of a sentence as a
habitual felony offender or a habitual violent felony offender.
(Emphasis added.)
Where the court has discretion to impose a new sentence and is not
merely performing a ministerial act, a defendant is entitled to a full de novo resentencing
hearing. Marana v. State,
226 So. 3d 329, 329 (Fla. 1st DCA 2017). Resentencing
must proceed as an entirely new proceeding where all issues bearing on the proper
sentence must be considered de novo and the defendant is entitled to the full array of
due process rights. State v. Collins,
985 So. 2d 985, 989 (Fla. 2008). Resentencing is
not just a reweighing of existing evidence; rather, both sides may present additional
evidence.
Id. Indeed, "[i]n Florida, the State is required to produce evidence during the
new sentencing proceeding to establish facts even if those facts were established
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during the original sentencing proceeding." Lebron v. State,
982 So. 2d 649, 659 (Fla.
2008).
Because the court has discretion in imposing a HFO sentence, see Peek
v. State,
143 So. 3d 1101, 1102 (Fla. 5th DCA 2014), a resentencing hearing is needed
to address whether a defendant qualifies for HFO sentencing. Accordingly, we reverse
and remand for the circuit court to conduct a full de novo resentencing hearing at which
Heatley's PSI shall be considered.
Reversed and remanded with instructions.
KELLY and BLACK, JJ., Concur.
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