Lee v. State , 257 So. 3d 1132 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed October 17, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-698
Lower Tribunal No. 14-5657
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Ronald Jerome Lee,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Cristina Miranda, Judge.
Ronald Jerome Lee, in proper person.
Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before SALTER, EMAS and LOGUE, JJ.
EMAS, J.
Ronald Jerome Lee appeals from a trial court order which granted his
motion to correct illegal sentence but which resentenced Lee in absentia and
without the presence of, or representation by, counsel. We reverse for a new
sentencing proceeding because Lee had a right to be present and to be represented
by counsel at the resentencing hearing in which the trial court had discretion in
determining the new sentence to be imposed.
Lee was originally sentenced to forty years’ imprisonment for attempted
second-degree murder with a firearm, together with a twenty-year mandatory
minimum for discharge of a firearm during the commission of that crime.1 The
trial court ordered that the twenty-year mandatory minimum sentence for that
count be served consecutively to the twenty-year mandatory minimum sentences
imposed in two other counts (two counts of aggravated assault with a firearm, each
involving discharge of a firearm). At the time of Lee’s original sentencing, the
trial court believed it had no discretion and was required to order that the
mandatory minimum sentences be served consecutively. See Morgan v. State, 137
So. 3d 1075 (Fla. 3d DCA 2014) (quashed by Morgan v. State, 42 Fla. L. Weekly
S680 (Fla. May 26, 2017)); Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013)
(quashed by Williams v. State, 186 So. 3d 989 (Fla. 2016)).
1 See § 775.087(2)(d), Fla. Stat. (2014) (known as the 10/20/Life statute, it requires
a mandatory minimum sentence of twenty years where a defendant discharges a
firearm during the course of the commission of certain enumerated felonies).
2
Lee filed a motion to correct illegal sentence pursuant to rule 3.800(a),
contending in part that the forty-year sentence is illegal because the crime of
attempted second-degree murder with a firearm is a first-degree felony, punishable
by a maximum of thirty years.2 The trial court granted the motion to correct illegal
sentence, and resentenced Lee to thirty years’ imprisonment, with a twenty-year
mandatory minimum. The trial court again ordered that the twenty-year
mandatory-minimum portion of the sentence be served consecutively to the
mandatory minimum sentences imposed on the aggravated assault counts. Neither
Lee nor his counsel were present for the resentencing proceeding.
The State has properly and commendably conceded that, although the trial
court properly granted Lee’s motion to correct illegal sentence, the trial court erred
in resentencing Lee in absentia and without the presence of, and representation by,
counsel. Where a trial court grants a motion to correct an illegal sentence, a
defendant has the right to be present at the resentencing and to be represented by
counsel. Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Gonzalez v. State, 221
So. 3d 1225 (Fla. 3d DCA 2017); Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d
2 See §§ 777.04(4)(c), 782.04, Fla. Stat. (2014) (together providing that attempted
second-degree murder is a second-degree felony, punishable by a maximum of
fifteen years); § 775.087, Fla. Stat. (reclassifying a second-degree felony to a first-
degree felony for use of a firearm); § 775.082(3)(b)1. (providing that the maximum
sentence for a first-degree felony is “a term of imprisonment not exceeding 30
years or, when specifically provided by statute, by imprisonment for a term of
years not exceeding life imprisonment”).
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DCA 2008) (holding that a “new sentencing hearing is a critical stage of the
proceedings, and due process requires he be present and assisted by counsel”). See
also Fla. R. Crim. P. 3.180(a)(9) (providing that “the defendant shall be present . . .
at the pronouncement of judgment and the imposition of sentence”). While a
violation of this right is subject to a harmless error analysis, Jordan, 143 So. 3d at
338, the State acknowledges, and we agree, that the error in this case is not
harmless, as the trial court had discretion in imposing a corrected, legal sentence.
See id. at 339-40 (holding that “a resentencing at which the trial judge has
discretion is not a ministerial act”).
The trial court had the authority to impose a sentence less than the maximum
legal sentence of thirty years. Although the original sentence of forty years (and
the corrected sentence of thirty years) would appear to demonstrate the trial court’s
intent to impose the maximum allowable sentence, the absence of Lee and his
counsel from the resentencing deprived Lee of the opportunity to present evidence
and argument to the trial court that some sentence less than the maximum is
appropriate.
Further, since the time of Lee’s original sentence, our decision in Morgan,
and the Fourth District’s decision in Williams, have been quashed by the Florida
Supreme Court, and the law is now clear that the trial court has the discretion to
order the twenty-year mandatory minimum portion of Lee’s sentence to be served
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concurrently with, rather than consecutively to, the other mandatory minimum
sentences imposed in this case. See Morgan, 42 Fla. L. Weekly S680 at *1;
Williams, 186 So. 3d at 995; Charlemagne v. State, 223 So. 3d 1124 (Fla. 3d DCA
2017); Martinez-Castaneda v. State, 225 So. 3d 847 (Fla. 3d DCA 2016). Indeed,
the trial court’s resentencing order acknowledges this clarification of the law, but
concludes that the mandatory minimum portion of the sentence should be served
consecutively to the mandatory minimum sentences imposed for the aggravated
assault convictions. Nevertheless, because this determination involves the exercise
of the trial court’s discretion, Lee and his counsel were entitled to be present at the
resentencing and to present evidence and argument to the trial court on the issue.3
We therefore vacate the corrected sentence imposed for Lee’s conviction for
attempted second-degree murder, and remand for the trial court to conduct a
resentencing proceeding on that count and thereafter impose sentence. Lee shall
be present for that proceeding and shall be represented by counsel. We express no
opinion with regard to what sentence should be imposed at resentencing.
3 As discussed earlier, at the time of the original sentencing, the trial court followed
the then-existing law, which gave the trial court no discretion and required it to
impose the mandatory minimum sentence consecutively. Thus, at this
resentencing proceeding, Lee and his counsel will be afforded the opportunity to
present to the trial court, for the first time, evidence and argument in support of a
concurrent, rather than a consecutive, mandatory minimum sentence on this count.
See Mason v. State, 210 So. 3d 120 (Fla. 2d DCA 2016).
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