Gonzalez v. State, No. 1D01-3817.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | PER CURIAM. |
| Citation | 838 So.2d 1242 |
| Parties | Isidro G. GONZALEZ, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 10 March 2003 |
| Docket Number | No. 1D01-3817. |
838 So.2d 1242
Isidro G. GONZALEZ, Appellant,v.
STATE of Florida, Appellee
No. 1D01-3817.
District Court of Appeal of Florida, First District.
March 10, 2003.
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.
PER CURIAM.
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) (holding that the denial of the right to counsel is fundamental error); see also May v. State, 623 So.2d 601, 603 (Fla. 2d DCA 1993) (stating that the Sixth Amendment right to counsel is a fundamental right). 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) (holding that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b)). 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) ("The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.") (citations omitted); State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) ("Denial of counsel...
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Morris v. Buss, Case No. 3:08cv223/RV/EMT.
...1304] constitutional right to be present and represented by counsel at resentencing (Ex. K at 6–8). Petitioner cited Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003) in support of his claim ( id.). In Gonzalez, the defendant challenged his new sentence upon resentencing on the ground t......
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Jackson v. State, No. SC07-659.
...process error" that may be raised for the first time on 983 So.2d 566 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 o......
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State v. Tex B.S., No. 14–0891.
...See People v. Everett,250 P.3d 649, 664 (Colo.App.2010); Bell v. State,863 So.2d 458 (Fla.Dist.Ct.App.2004); Gonzalez v. State,838 So.2d 1242, 1243 (Fla.Dist.Ct.App.2003); People v. Waldrup,No. 2–10–0309, 2012 WL 6964974 (Ill.App.Ct. Jan. 11, 2012).As previously noted, during the hearing th......
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State v. Southern, No. 14-0891
...See People v. Everett, 250 P.3d 649, 664 (Colo. App. 2010); Bell v. State, 863 So. 2d 458 (Fla. Dist. Ct. App. 2004); Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. Dist. Ct. App. 2003); People v. Waldrup, No. 2-10-0309, 12012 WL 6964974 (Ill. App. Ct. Jan. 11, 2012).Page 17 As previously n......
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Morris v. Buss, Case No. 3:08cv223/RV/EMT.
...1304] constitutional right to be present and represented by counsel at resentencing (Ex. K at 6–8). Petitioner cited Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003) in support of his claim ( id.). In Gonzalez, the defendant challenged his new sentence upon resentencing on the ground t......
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Jackson v. State, No. SC07-659.
...process error" that may be raised for the first time on 983 So.2d 566 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 o......
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State v. Tex B.S., No. 14–0891.
...See People v. Everett,250 P.3d 649, 664 (Colo.App.2010); Bell v. State,863 So.2d 458 (Fla.Dist.Ct.App.2004); Gonzalez v. State,838 So.2d 1242, 1243 (Fla.Dist.Ct.App.2003); People v. Waldrup,No. 2–10–0309, 2012 WL 6964974 (Ill.App.Ct. Jan. 11, 2012).As previously noted, during the hearing th......
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State v. Southern, No. 14-0891
...See People v. Everett, 250 P.3d 649, 664 (Colo. App. 2010); Bell v. State, 863 So. 2d 458 (Fla. Dist. Ct. App. 2004); Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. Dist. Ct. App. 2003); People v. Waldrup, No. 2-10-0309, 12012 WL 6964974 (Ill. App. Ct. Jan. 11, 2012).Page 17 As previously n......