Dean v. State

• Citation: 294 So.3d 350
• Decision Date: 08 April 2020
• Docket Number: No. 4D18-2406,4D18-2406
• Parties: Christopher Tavaris DEAN, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

294 So.3d 350

Christopher Tavaris DEAN, Appellant,

v.STATE of Florida, Appellee.

No. 4D18-2406

District Court of Appeal of Florida, Fourth District.

[April 8, 2020]

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, Melanie Dale Surber, Senior Assistant Attorney General, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

Ciklin, J.

The primary issue before this court is whether Christopher Tavaris Dean was entitled to de novo resentencing, following the Florida Supreme Court's unequivocal remand and instructions to this court which we in turn passed on and remanded to the trial court—also with unequivocal instructions. We agree with Dean that he was deprived of the "clean slate" resentencing hearing to which he was entitled, and we reverse and remand for yet another sentencing hearing.

As a reminder to all parties, this is what the Florida Supreme Court determined and directed we do:

We quash the Fourth District's holding regarding Dean's PRR sentences and remand for resentencing because his designation as a PRR is not supported by the evidence in the record in this case. See Davenport v. State, 971 So. 2d 293, 295 (Fla. 4th DCA 2008) ("It is permissible for a trial court to take judicial notice of its own files, but the trial judge has to put such evidence in the record of each case when sentencing a defendant as an HFO and PRR."), rev. denied, 993 So. 2d 511 (Fla. 2008). On remand, the State may present evidence to prove that Dean meets the statutory requirements to be sentenced as a PRR. See Ward v. State, 11 So. 3d 459, 459 (Fla. 3d DCA 2009) ; see also State v. Collins, 985 So. 2d 985, 990 (Fla. 2008) ("[B]ecause a resentencing is a new proceeding, the State may present additional evidence on remand to prove the defendant qualifies for habitual felony offender sentencing.")[.]

....

... [W]e quash the Fourth District's holding regarding Dean's PRR sentences and remand for resentencing.

Dean v. State , 230 So. 3d 420, 424-25 (Fla. 2017) (footnote omitted).

Of particular importance is the Florida Supreme Court's specific cite to State v. Collins in which, in pertinent part, the court held:

In noncapital cases, too, we have concluded that "resentencing entitles the defendant to a de novo sentencing hearing with the full array of due process rights." Trotter v. State , 825 So. 2d 362, 367-68 (Fla. 2002) ; see also Galindez v. State , 955 So. 2d 517, 525 (Fla. 2007) (Cantero, J., specially concurring) ("We have consistently held that resentencing proceedings must be a ‘clean slate,’ meaning that the defendant's vacated sentence becomes a ‘nullity’ and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’ " (citation omitted)); Walker [v. State , 988 So. 2d 6, 8 (Fla. 2d DCA 2007) ] (Altenbernd, J., concurring specially) ("Generally, courts have held that once a defendant successfully challenges his sentence on appeal and the cause is remanded for resentencing, the resentencing is a ‘de novo’ proceeding, at which either side may present evidence anew regarding the appropriate sentence.").

The principle of de novo sentencing often benefits the defendant. See, e.g., Galindez , 955 So. 2d at 525 (Cantero, J., specially concurring) ("In fact, because resentencing is de novo, the State was required to produce evidence on sentencing issues even if the State established the fact at the original sentencing."); Tubwell v. State , 922 So. 2d 378, 379 (Fla. 1st DCA 2006) ("As this resentencing proceeding was de novo, the state was not relieved of its burden to prove the prior offenses." (citations omitted)); Rich v. State , 814 So. 2d 1207, 1208 (Fla. 4th DCA 2002) (holding that because resentencing following reversal is a new proceeding, the State must introduce evidence that the defendant qualifies for enhanced sentencing, even though such evidence was introduced in the previous sentencing hearing); Mills v. State , 724 So. 2d 173, 174 (Fla. 4th DCA 1998) (holding that even though the defendant did not challenge his prior convictions at the original sentencing, law-of-the-case principles do not insulate the State from proving them at resentencing); Baldwin v. State , 700 So. 2d 95, 96 (Fla. 2d DCA 1997) (agreeing that because resentencing is a new proceeding, the defendant may challenge the accuracy of prior convictions included on his scoresheet, even though he did not challenge them at the original sentencing).

We have also recognized that because a resentencing is a new proceeding, the court is not limited by the evidence originally presented. See Lucas v. State , 841 So. 2d 380, 387 (Fla. 2003) ("[A] resentencing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase."); Mann v. State , 453 So. 2d 784, 786 (Fla. 1984) (recognizing that where a remand directs a new sentencing proceeding, both sides may present additional evidence).

Collins , 985 So. 2d at 989 (alterations in original) (emphasis in original).

Despite the fact that Dean was permitted to present evidence at the hearing, statements made by the trial court and the prosecutor at the hearing patently evidence their belief that the only purpose of remand was to introduce evidence that Dean qualified as a Prison Releasee Reoffender. We encountered a similar situation in Davis v. State , 227 So. 3d 137, 138 (Fla. 4th DCA 2017). In an earlier opinion, Davis's previous sentence was reversed and remanded for resentencing. Id . At resentencing, the trial court announced that it had read everything submitted to it, including Davis's sentencing memorandum, letters from Davis's family and friends, and certificates from the programs he completed while incarcerated. Id . The parties were permitted to present their desired evidence and arguments. Id . However, in pronouncing sentence the trial court indicated that it was not inclined to "revisit" the sentence of the predecessor judge or consider new evidence regarding Davis's behavior in prison, and again imposed a life sentence. Id . at 138-39. This court reversed on the basis that Davis was not afforded the full panoply of due process considerations when he was resentenced:

From our review of the record, we are satisfied that the trial court, upon resentencing, afforded Davis due process by reviewing in advance all materials submitted by the defense for the resentencing hearing and allowing him to present any evidence and arguments he wanted. We note that Davis makes no issue on appeal regarding whether the successor judge was sufficiently familiar with the facts of the case, the trial, or the prior sentencing proceeding.

However, the statements by the successor judge during the hearing lead us to conclude that the trial court did not proceed on a "clean slate" on resentencing and intentionally decided it was not going to evaluate the same evidence submitted at trial and the initial sentencing hearing, together with the new evidence, which included information about Davis's performance in prison. The trial court acknowledged it was "permitted," by our remand instructions, to go through an evaluation process and change the length of the initial sentence, but announced "I am not going to revisit that," referring to the prior sentence, and "I am not prepared to do that," referring to consideration of Davis's performance while in prison. Thus, although the trial court afforded substantial due process to Davis on resentencing, it failed to afford the full panoply of due process, to which he was entitled.

Id . at 139-40.

As in Davis , Dean was permitted to present mitigating evidence, but the trial court's statements clearly indicate that it was not proceeding as if this was a "clean slate":

[THE STATE]: [T]he sentence has always been affirmed; ... it was remanded for the state to prove up the documentation of the PRR .

....

THE COURT: But isn't the issue here today -- and I agree with you; I believe Mr. Dean is extremely remorseful -- but -- and correct me if I'm wrong -- it was reversed for the state to present evidence to see whether or not he qualified as a prison releasee reoffender, correct?

[THE STATE]: That is correct ....

THE COURT: ... [T]his is just, you know, going through the machinations of the state getting the paperwork in order , none of the appellate courts ... reversed the underlying convictions, correct?

....

And the sole purpose of the remand was to rightly or wrongly give the state an opportunity to prove the PRR status ; if he is PRR then it's still a mandatory sentence, correct?

....

[THE STATE]: That is correct.

(Emphasis added.) Because the trial court and state clearly expressed that the hearing's purpose was for "documentation of the PRR" and "the state getting the paperwork in order," it is apparent that Dean did not receive a de novo sentencing hearing. Thus, as in Davis , "although the trial court afforded substantial due process to" Dean by allowing him to present evidence, "it failed to afford the full panoply of due process, to which he was entitled." See Davis , 227 So. 3d at 140.

A major distinguishing factor between this case and Davis is that the trial court in Davis was not statutorily required to impose a specific sentence. By contrast, the trial court in this case was bound to impose the PRR sentence that Dean received. One might be tempted to conclude that this renders the error "harmless." But because Dean was deprived of the full panoply of due process, the harmless error analysis does not apply. See Jackson v. State , 880 So. 2d 1241, 1243 (Fla. 1st DCA 2004) ("Because the deprivation of the right to due process constitutes fundamental error, a harmless error review is not appropriate.").

Relying on the trial judge's reasoning below, the dissent concludes that the sentence should be affirmed in that Dean was allowed to present evidence, because a PRR sentence is "proper," b...