Gonzalez v. State
| Decision Date | 10 March 2003 |
| Docket Number | No. 1D01-3817.,1D01-3817. |
| Citation | 838 So.2d 1242 |
| Parties | Isidro G. GONZALEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Isidro G. Gonzalez, Pro Se.
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General, and Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges his new sentence upon being re-sentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000). Although the issue of Appellant's lack of representation during the re-sentencing hearing was not properly preserved for appeal, the denial of the right to counsel is fundamental error. See Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998)
(); see also May v. State, 623 So.2d 601, 603 (Fla. 2d DCA 1993) (). Once a trial court determines that a defendant's sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches. See State v. Scott, 439 So.2d 219, 220 (Fla.1983). Sentencing is a critical stage of the criminal proceedings; thus, a sentencing hearing is mandatory. See id. at 221. As such, an indigent defendant is entitled to appointment of counsel at re-sentencing. See id.; see also McDonald v. State, 679 So.2d 1273 (Fla. 1st DCA 1996).
The lack of representation is not a sentencing error, but rather a due process error. Thus, Appellant may properly raise this issue on appeal. Cf. Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001)
(). Regardless of whether Appellant requested 122 months in his original motion, he did not expressly waive his right to appointed counsel. There is no waiver of counsel in the record, therefore, the trial court erred in failing to appoint counsel at the re-sentencing hearing. Such error is never harmless. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) () (citations omitted); State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) ().
Accordingly, we vacate Appellant's sentence and remand for further re-sentencing.
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Jackson v. State
...a due process error" that may be raised for the first time on appeal and reviewed for fundamental error. See Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003). In the opinion we review, the Second District Court of Appeal disagreed, concluding that a claim that the "lack of repres......
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Figueroa-Sanabria v. State
... ... found deprivations of counsel to be fundamental error." ... Jackson v. State , 983 So.2d 562, 575 (Fla. 2008) ... Such cases "generally involve deprivation of counsel ... during an entire proceeding." Id. For ... example, in Gonzalez" v. State , 838 So.2d 1242, 1243 ... (Fla. 1st DCA 2003), the First District Court of Appeal found ... that the complete denial of counsel at resentencing ... constituted a fundamental error, and we approved that ... decision. See Jackson , 983 So.2d at 575 ... \xC2" ... ...
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Smith v. State
...fundamental error, the temporary absence of counsel [during a victim impact statement] does not."); see also Gonzalez v. State , 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003) (vacating an indigent appellant's sentence and remanding for further resentencing after appellant was denied counsel). W......
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Hicks v. Sec'y, DOC, Case No. 3:11-cv-352-J-39JBT
...order. Of import, "[t]he lack of representation is not a sentencing error, but rather a due process error." Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003) (per curiam). See Jackson v. State, 983 So.2d 562, 578 (Fla. 2008) (finding the complete deprivation of counsel during rese......