Wilson v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ROBERT JOSHUA WILSON, )
)
Appellant, )
)
v. ) Case No. 2D15-2721
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed March 11, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; John K. Stargel, Judge.
Robert Joshua Wilson, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.
WALLACE, Judge.
Robert Joshua Wilson appeals the denial of his motion for postconviction
relief filed under Florida Rule of Criminal Procedure 3.850. We affirm without comment
the postconviction court's order summarily denying grounds two and three of the motion.
We treat ground one of Mr. Wilson's motion as filed under rule 3.800(a), and we reverse
the postconviction court's order on ground one and remand for resentencing.
On April 16, 2002, a jury found Mr. Wilson guilty of burglary of a
conveyance with an assault or battery, carjacking, and fleeing or attempting to elude a
law enforcement officer. The trial court imposed non discretionary prison releasee
reoffender (PRR) sentences of life and thirty years' imprisonment for the burglary and
carjacking convictions respectively and fifteen years' imprisonment for the fleeing or
attempting to elude conviction. In 2011, in an appeal from the denial of a motion to
correct an illegal sentence under rule 3.800(a), this court held that Mr. Wilson could not
be sentenced as a PRR for the burglary of a conveyance, and we reversed the
postconviction court's order. Wilson v. State, 76 So. 3d 332, 335 (Fla. 2d DCA 2011).
On remand, the trial court entered an order granting Mr. Wilson's motion to correct an
illegal sentence and removed the PRR designation.
In his subsequent motion for postconviction relief, Mr. Wilson argued, in
part, that the trial court erred in amending his sentence without ordering a new
sentencing hearing and permitting Mr. Wilson and his counsel to be present at that
hearing. Mr. Wilson is correct. See Gorham v. State, 988 So. 2d 152, 154 (Fla. 4th
DCA 2008) (holding that when a PRR sentence is determined to be illegal, the
defendant is entitled to a de novo resentencing). 1 Accordingly, we reverse ground one
of the postconviction court's order and remand for a de novo resentencing for Mr.
Wilson's burglary of a conveyance conviction. See Evans v. State, 909 So. 2d 424, 426
(Fla. 5th DCA 2005) (holding that when a movant successfully challenges an illegal
PRR sentence in a rule 3.800(a) motion, at resentencing, the movant is entitled to "be
1Tobe fair, this court did not explicitly state in our 2011 opinion that a new
sentencing hearing was required.
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present at sentencing, represented by counsel, with an opportunity to present mitigating
evidence"). 2
Affirmed in part, reversed in part, and remanded for resentencing.
ALTENBERND and MORRIS, JJ., Concur.
2Mr.
Wilson's right to be resentenced by the circuit court judge who
imposed his original sentence shall be determined in accordance with rule 3.700. See
Clemons v. State, 816 So. 2d 1180, 1182 (Fla. 2d DCA 2002) (holding that the
requirements of rule 3.700 apply to resentencing).
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