ROD L. BRUCE v. STATE OF FLORIDA

R
       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           ROD LEE BRUCE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D19-3877

                           [February 10, 2021]

   Appeal from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No.
50-2016-CF-005654-AXXX-MB.

  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

1  This was not a correct representation. Although Defendant did not specifically
challenge his designation as a PRR in Bruce I, we nonetheless reversed the
burglary sentences in their entirety and remanded for a de novo resentencing
hearing. As the PRR designation was part of the burglary sentences, by reversing
the burglary sentences we necessarily reversed the PRR designation.

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      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

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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] would receive the ‘clean slate’
sentencing hearing to which he was entitled and which both the Florida
Supreme Court and this court ordered.”

Id. The State nonetheless

maintains that affirmance is required in this
case because defense counsel stipulated at the resentencing hearing that
Defendant qualified as a PRR. See Bolen v. State, 

943 So. 2d 855

, 856
(Fla. 1st DCA 2006) (“Appellant cannot affirmatively agree to the
sufficiency of the State’s proof of his PRR qualifications at sentencing and
then later invoke rule 3.800(b)(2) to take the opposite position.”); see also
Ward v. State, 

298 So. 3d 638

, 642 (Fla. 4th DCA 2020) (holding that
because defense counsel stipulated that the defendant qualified as a VCC,
the State was not required to introduce evidence of the defendant’s
criminal history to support his classification as a VCC); Hamilton v. State,

746 So. 2d 512

, 513 (Fla. 2d DCA 1999) (“[T]his court has held that a
defendant may waive the procedural requirements of section 775.084 if


                                     4
the defendant stipulates that he qualifies as a habitual felony offender and
agrees to be sentenced as such.”).

    We disagree. Although defense counsel’s stipulation that Defendant
qualified as a PRR may have alleviated the State of its evidentiary burden,
it did not alleviate the trial court of its obligation to conduct a de novo
resentencing hearing. At the very least, in a situation where defense
counsel stipulates that the defendant qualifies as a PRR, the trial court
should confirm that the state is seeking PRR sentencing, acknowledge the
stipulation, and verify the defendant’s consent to the stipulation. Doing
so allows the appellate court to confirm that the trial court treated the
resentencing hearing de novo.

   Based upon the foregoing, we reverse the burglary sentences and
remand for a de novo resentencing hearing. Defendant requests that
resentencing occur before a different judge and cites to Betty v. State, 

233 So. 3d 1149

(Fla. 4th DCA 2017), in support thereof. In Betty, the original
sentencing judge refused to conduct a de novo resentencing hearing on
the basis that “regardless of any possible youthful offender argument trial
counsel could make, the original sentencing court would not have
sentenced Appellant as a youthful offender.”

Id. at 1151.

Based on these
comments, we determined that “given the announced decision by the
original sentencing judge before considering the evidence and arguments
to be presented on the issue, the appearance of prejudgment must be
avoided and sentencing by a different judge is required.”

Id. at 1153.

Here,
unlike in Betty, there is no appearance of prejudgment on the part of the
judge. Rather, it is clear the sentencing judge failed to conduct a de novo
resentencing hearing based on the mistaken belief that Defendant’s PRR
designation had been affirmed on appeal. Thus, resentencing can proceed
before the same judge.

   Finally, Defendant also argues that he was unconstitutionally
sentenced as a PRR because the predicate findings for PRR status were
not charged in the information, submitted to a jury, and proven beyond a
reasonable doubt. We affirm on this issue without further comment.
See Chapa v. State, 

159 So. 3d 361

, 362 (Fla. 4th DCA 2015).

   Reversed and remanded.

CIKLIN and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.

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