Bruce v. State

• Decision Date: 10 February 2021
• Docket Number: No. 4D19-3877,4D19-3877
• Citation: 311 So.3d 51
• Parties: Rod Lee BRUCE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

311 So.3d 51

Rod Lee BRUCE, Appellant,

v.STATE of Florida, Appellee.

No. 4D19-3877

District Court of Appeal of Florida, Fourth District.

[February 10, 2021]

Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.

Rod Lee Bruce ("Defendant") appeals the trial court's resentencing order which was entered on remand after this Court reversed and remanded for a de novo resentencing hearing in Bruce v. State , 276 So. 3d 1 (Fla. 4th DCA 2019) ( Bruce I ). Finding merit in Defendant's argument that the trial court failed to conduct a de novo resentencing hearing, we reverse and remand for yet another sentencing hearing.

By way of background, Defendant was found guilty of one count of burglary of an occupied dwelling, one count of burglary of a dwelling, and two counts of grand theft. The trial court sentenced Defendant to concurrent 40-year prison sentences as a Prison Releasee Reoffender ("PRR") and a Violent Career Criminal ("VCC") on each of the burglary counts and concurrent 5-year prison sentences on each of the grand theft counts. In Bruce I , Defendant appealed his convictions and sentences, arguing, among other things, that the trial court erred in designating him as a VCC. Bruce I , 276 So. 3d at 3. Defendant did not specifically challenge his PRR designation. We ultimately determined that Defendant's previous offense did not qualify him as a VCC and "reverse[d] the burglary sentences and remand[ed] for a de novo sentencing hearing." Id. at 4.

At the resentencing hearing, the State requested that Defendant be sentenced to a total of 30 years in prison on the burglary counts as a PRR, and the following relevant dialogue ensued:

[THE STATE]: [T]he State is requesting 30 years. I provided the Court with ... the case of State v. Mosley , a Supreme Court case where the Court has discretion. You already found that he was PRR at the original sentencing. So, I think everyone is in agreement that he is PRR, so ...

THE COURT: And that was not reversed on appeal ... that he was PRR?

[THE STATE]: Correct.¹ So, I'm asking you do 15 and 15 on each burglary count and stack it so it's 30 years. This Defendant, I'm sure Your Honor remembers, has quite the long criminal history, especially with burglaries and going to DOC. He's been in and out of prison for most of his life. Your Honor found that he—even though was now not a violent career criminal, but that the 40-year sentence was appropriate in light of his priors and in light of the crimes.

So, I'm asking that following the law, you would have him PRR, 30 years; 15 and 15. And, obviously, restitution remains to the victims. They are in agreement with everything that I just said.

THE COURT: Okay. [Defense counsel], what would you like to say?

[DEFENSE COUNSEL]: Your Honor, it is in the Court's discretion from the research that we've done. I know [Defendant] has a different interpretation about whether the Court can stack his sentences and enhance sentence in one criminal episode. That's what we would like for the Court to consider, that it was one criminal episode. It's not in dispute that he's PRR . We would ask the Court to give him 15 year concurrent on both counts that remain.

(emphasis added).

Considering the above discussion, the State did not introduce any evidence at the resentencing hearing to support a PRR sentence and defense counsel did not contest the PRR designation. Instead, the remainder of the hearing focused on whether to impose the PRR sentences concurrently or consecutively. Ultimately, the court sentenced Defendant to consecutive 15-year PRR sentences on the burglary counts and Defendant initiated the instant appeal.

During the pendency of the appeal, Defendant filed a rule 3.800(b)(2) motion to correct a sentencing error below, arguing that the trial court deprived him of a de novo resentencing hearing. Specifically, Defendant argued the trial court "did not require the State to present evidence proving [Defendant] was PRR, or entertain arguments against his PRR status." The trial court denied the motion, concluding that by affirmatively agreeing at the resentencing hearing that he qualified for a PRR designation, Defendant waived any challenge to the sufficiency of the State's evidence.

It is well established "that where a sentence has been reversed or vacated, the resentencings in all criminal proceedings ... are de novo in nature." State v. Fleming , 61 So. 3d 399, 406 (Fla. 2011). This means that "[r]esentencing 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." Heatley v. State , 279 So. 3d 850, 852 (Fla. 2d DCA 2019) (citing State v. Collins , 985 So. 2d 985, 989 (Fla. 2008) ). Thus, "the State is required to produce evidence during the new sentencing proceeding to establish facts even if those facts were established during the original sentencing proceeding." Lebron v. State , 982 So. 2d 649, 659 (Fla. 2008).

In Dean v. State , 294 So. 3d 350 (Fla. 4th DCA 2020), this Court recently explained the requirements of a de novo resentencing as it relates to PRR sentencing. In that case, after we upheld the defendant's PRR sentences, the Florida Supreme Court quashed our holding and remanded for resentencing because the defendant's designation as a PRR was not supported by the evidence in the record. Dean , 294 So. 3d at 351. At the resentencing hearing, however, the prosecutor represented to the trial court that the defendant's sentences had been remanded only "for the state to prove up the documentation of the PRR ." Id. at 353. After the trial court confirmed on the record that "the sole purpose of the remand was to rightly or wrongly give the state an opportunity to prove the PRR status " and go "through the machinations of the state getting the paperwork in order ," it proceeded with the evidentiary portion of the hearing. Id.

In holding that the defendant was deprived of a "clean slate" de novo resentencing hearing, we explained that although the defendant was permitted to present mitigating evidence at the hearing, "statements made by the trial court and the prosecutor at the hearing patently evidence[d] their belief that the only purpose of remand was to introduce evidence that [the defendant] qualified as a [PRR]." Id. at 352. We then clarified that a de novo resentencing hearing "means that the state should determine whether to seek PRR sentencing, not merely ‘prove up’ PRR qualification, and that if the state elects to pursue a PRR sentence, the state must introduce evidence supporting a PRR sentence, regardless of whether such evidence was introduced at a prior hearing." Id. at 354 (internal citations omitted). We further held that "because [the defendant] was deprived of the full panoply of due process, the harmless error analysis does not apply." Id.

In the present case, much like in Dean , the trial court's and the prosecutor's statements that Defendant's original PRR designation was affirmed on appeal and not at issue at the resentencing hearing evidenced their belief that the only purpose on remand was to determine how the PRR sentences should be imposed. Indeed, the remainder of the resentencing hearing focused on whether the trial court should impose consecutive PRR sentences. Thus, "[b]ased on the trial court's own words, there was never a chance that [Defendant]...