Al L. Burgess v. State of Florida ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AL L. BURGESS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-2308
[January 6, 2016]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 97-1342 CF10A.
Al L. Burgess, Miami, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant appeals from an order of the trial court that denied in part
his motion to correct illegal sentence. He contends that he should have
been granted a resentencing hearing at which he would be present and
represented by counsel. The trial court’s order granted the motion insofar
as it struck Appellant’s designation as a habitual violent felony offender
for the life felonies of armed kidnapping and armed sexual battery, but
denied Appellant’s request for resentencing “without prejudice.”1 The
latter ruling was reversible error, as a defendant is entitled to be present
and represented by counsel at any resentencing proceeding from a motion
1The striking of Appellant’s habitual violent felony offender designation on those
counts was proper, as Appellant committed these crimes during the “window
period” in which Chapter 95-182, Laws of Florida, was declared unconstitutional.
Cook v. State, 866 So. 2d 1291 (Fla. 4th DCA 2004); Hankerson v. State, 765 So.
2d 982 (Fla. 4th DCA 2000); Lewis v. State, 764 So. 2d 874 (Fla. 4th DCA 2000);
Austin v. State, 756 So. 2d 1080, 1081 (Fla. 4th DCA 2000).
to correct illegal sentence unless resentencing involves only a ministerial
act. Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014).
In this case, once Appellant’s habitual violent felony offender
designations were struck, the trial court was required to reconsider
Appellant’s sentences under the sentencing laws in effect at the time of his
offenses. Thompson v. State, 987 So. 2d 727, 728 (Fla. 4th DCA 2008);
Lewis v. State, 764 So. 2d 874 (Fla. 4th DCA 2000). 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. Jordan, 143
So. 3d at 339-40 (resentencing after motion to correct based on improper
imposition of habitual violent felony offender designation not ministerial
because trial court has discretion under sentencing guidelines applicable
at the time of the defendant’s offense).
Therefore, we vacate the trial court’s order to the extent it denies
Appellant’s request for resentencing, and remand for further proceedings
consistent with this opinion. On remand, the trial court is free to impose
departure sentences if valid grounds for departure are proven. Thompson,
987 So. 2d at 729.
Order vacated in part and remanded for further proceedings.
GROSS, CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2