FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-1172
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PAUL THOMAS KARTSONIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
September 14, 2020
ON MOTION FOR REHEARING AND
MOTION FOR ISSUANCE OF A WRITTEN OPINION
PER CURIAM.
Appellant timely filed a motion for rehearing and request for
issuance of a written opinion. We deny the motion for rehearing
but grant Appellant’s motion for issuance of a written opinion.
Accordingly, we withdraw our previous opinion and substitute the
following. 1
1 Judge Long replaced Judge Wolf on the panel after Judge
Wolf retired.
Appellant claims it was error for a successor judge to rule on
and deny his rule 3.800(b) motion because the original sentencing
judge was still available. 2 Florida Rule of Criminal Procedure
3.700(c)(1) provides:
In any case, other than a capital case, in which it is
necessary that sentence be pronounced by a judge other
than the judge who presided at trial or accepted the plea,
the sentencing judge shall not pass sentence until the
judge becomes acquainted with what transpired at the
trial, or the facts, including any plea discussions,
concerning the plea and the offense.
(emphasis added).
Appellant suggests this rule should apply to all sentencing
related matters. However, on its face, rule 3.700(c) is applicable
only when a sentence is pronounced. See generally Lawley v. State,
377 So. 2d 824 (Fla. 1st DCA 1979). The rule that a judge other
than the original presiding trial judge should not pronounce a
sentence absent necessity applies only in the context of a trial
judge exercising discretion to determine and impose an
appropriate sentence.
Id. at 825. Where there is no discretionary
resentencing, the rule does not impact a trial court’s resolution of
post-conviction matters just because they address or relate to
underlying sentencing issues. This distinguishes Gay v. State,
898
So. 2d 1203 (Fla. 2nd DCA 2005), the primary case relied on by
Appellant, because the defendant in Gay was resentenced by a
different judge. In this case, Appellant’s motion was denied and a
new sentence was not pronounced.
AFFIRMED.
ROBERTS, WINOKUR, and LONG, JJ., concur.
2 Appellant raises two arguments on appeal. His motion for
rehearing and a written opinion speaks only to his second
argument. We address the second here and affirm as to the first
without further comment.
2
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.
3
