SMITH v. STATE (2000)

Samuel Smith petitions this Court for a belated appeal from a sentencing order.   We grant the belated appeal and reverse the sentencing order.

In the underlying case, Smith appealed to this Court from an order of revocation of community control and an order imposing sentence.  Smith v. State, 705 So.2d 1033 (Fla. 3d DCA 1998).   This Court found that only one of the multiple grounds for the violation was valid.  Smith, 705 So.2d at 1034.   On this basis, this Court affirmed the revocation order but reversed the sentencing order instructing that on remand the trial court could “impose the same sentence or exercise its discretion to impose a reduced sentence.”   Smith, 705 So.2d at 1034.

On remand at the resentencing, Smith was not afforded the opportunity to be present.   For this reason, Smith challenges his new sentence.

In Jackson v. State, 25 Fla. L. Weekly S53, 767 So.2d 1156, 2000 WL 92119 (Fla.Jan. 27, 2000), the Florida Supreme Court held:

[O]ne of a criminal defendant's most basic constitutional rights is the right to be present in the courtroom at every critical stage in the proceedings.   This right extends to “any stage of the criminal proceeding that is critical to its outcome if [the defendant's] presence would contribute to the fairness of the procedure.”   Because the defendant's presence will “contribute to the fairness of the procedure,” the right to be present extends to the hearing where her sentence will be reconsidered.

Jackson v. State, 25 Fla. L. Weekly at S53-54, --- So.2d at ---- - ---- (citations omitted).

Because Smith had a right to be present at resentencing and represented by counsel, we grant Smith's belated appeal, reverse the sentencing order, and remand this cause to the trial court for a new sentencing hearing where the defendant must be present and represented by counsel.   Again, on remand, the trial court can impose the same sentence or exercise its discretion to impose a reduced sentence.

Petition granted;  sentencing order reversed and remanded for further proceedings consistent with this opinion.

PER CURIAM.