DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KERN R. DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-1370

[September 6, 2017]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jack S. Cox, Judge; L.T. Case No. 

501994CF004965AXXXMB.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

For a second time, this case is before us on a claim that the sentence 

imposed is illegal. We reverse a second time because we agree with the 

appellant, Kern R. Davis, that the trial court, on remand, did not 

resentence him with the full panoply of due process.

Factual Background and Trial Court Proceedings

In 1994, Davis was convicted after trial of robbery with a deadly weapon 

and armed carjacking. At the initial sentencing, he was sentenced as a 

habitual violent felony offender to life in prison with a minimum 

mandatory of fifteen years on each count. In 2013, Davis filed a motion to 

correct illegal sentences, contending his prior robbery conviction in Dade 

County, which was the sole qualifying offense for his habitual violent 

felony offender status, was reversed on appeal. The trial court denied the 

motion. We reversed the trial court and remanded the case for 

resentencing with the following direction: “Although [Davis] does not 

qualify as an [habitual violent felony offender], he may qualify as a habitual 
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felony offender and those sanctions may be sought on remand.” Davis v. 

State, 164 So. 3d 96 (Fla. 4th DCA 2015).

On remand, the State filed its notice of intent to seek an enhanced 

penalty for Davis as a habitual felony offender. Davis filed a sentencing 

memorandum, listing as mitigating factors his strong family support, the 

fact that his previous robbery conviction in Dade County was vacated 

based on false testimony, the classes that he has taken while incarcerated, 

the fact that he was physically and sexually abused by family members, 

his advanced age with a decreased chance of recidivism, and evidence of 

rehabilitation through programs while incarcerated.

A resentencing hearing was held by a successor judge because the 

judge who tried the case and imposed the sentence twenty-two years 

earlier was no longer on the bench. At the beginning of the hearing, the 

trial court stated that it read everything that was submitted to it, including 

Davis’s sentencing memorandum and the attached letters from family and 

friends and certificates of completion from the programs Davis had

completed while incarcerated. The trial court also reviewed a 

reconstructed scoresheet the parties agreed was accurate. Eventually, the 

parties stipulated that Davis qualified for sentencing as a habitual felony 

offender. The trial court permitted both parties to present whatever 

evidence and arguments either desired. However, as discussed more fully 

below, the statements of the trial court in pronouncing sentence indicated 

it was not inclined to “revisit” the sentence imposed by the judge who tried 

the case or consider the new evidence regarding Davis’s behavior while in 

prison. The trial court determined Davis to be a habitual felony offender 

and sentenced him again to life in prison with the mandatory minimums. 

Davis gave notice of appeal. 

Appellate Analysis

Because Davis claims a denial of due process, the standard of review 

for a constitutional claim is de novo. See A.B. v. Fla. Dep’t of Children & 

Family Servs., 901 So. 2d 324, 326 (Fla. 3d DCA 2005) (citing G.C. v. Dep’t 

of Children & Families, 791 So. 2d 17, 19 (Fla. 5th DCA 2001)) (“The 

standard of review for the mother’s constitutional claim is de novo as this 

issue involves a question of law.”).

Both parties agree that when a sentence has been reversed as illegal

and the case is remanded for resentencing, a defendant is entitled to the 

full panoply of due process considerations on resentencing. State v. 

Fleming, 61 So. 3d 399, 406 (Fla. 2011) (quoting State v. Scott, 439 So. 2d 

219, 220 (Fla. 1983)). What the parties disagree about is whether Davis 
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received the full panoply of due process considerations when resentenced 

upon remand. Davis contends the trial court interpreted our remand 

instructions to simply direct the trial court to determine whether Davis 

was eligible for sentencing as a habitual offender, in which case, the 

previously imposed sentence would stand. The State contends the trial 

court fully understood it was to conduct a de novo sentencing, and did so, 

but exercised its discretion to impose the same sentence imposed by the 

judge who tried the case. The State further argues that on resentencing 

after an erroneous habitualization, the trial court may impose a sentence 

to achieve the original sentencing intent, but not exceed it, citing to Dixon 

v. State, 41 So. 3d 990, 991 (Fla. 4th DCA 2010), and Suarez v. State, 974 

So. 2d 451, 453 (Fla. 3d DCA 2008).

In Galindez v. State, 955 So. 2d 517 (Fla. 2007), in a specially 

concurring opinion, Justice Cantero explained the principles of a de novo

resentencing:

We have consistently held that resentencing proceedings must 

be a “clean slate,” Preston v. State, 607 So. 2d 404, 408 (Fla.

1992), 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.” Morton [v. 

State], 789 So. 2d [324, 334 (Fla. 2001)] (quoting Teffeteller[ v. 

State], 495 So. 2d [744, 745 (Fla. 1986)]). This means that 

the trial court must extend to the defendant the “full panoply” 

of existing procedural protections, State v. Scott, 439 So. 2d 

219, 220 (Fla.1983), including any new constitutional 

protections that have been recognized since the defendant’s

original sentencing. 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. This was required whether or not the defendant 

disputed the issues in the prior sentencing proceeding. In 

addition to the parties’ rights to present additional evidence 

and the State’s burden to produce evidence, we also have held 

that the trial court is not limited to its findings from the prior 

proceeding, but may make new findings and may even 

increase the sentence. 

Id. at 525-26 (Cantero, J., specially concurring) (emphasis in original).

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 
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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.

We are mindful of our decision in Peters v. State, 128 So. 3d 832 (Fla. 

4th DCA 2013), where the defendant claimed that on resentencing, a 

successor judge merely “rubber stamped” the sentence imposed by the 

initial sentencing judge many years before. Id. at 841. We affirmed the 

trial court in that case, but we said:

In other words, “[w]hat is essential is for the successor judge 

to be sufficiently familiar with the case so that the imposition 

of a sentence is his or her act of independent judgment, not 

mere reliance on the decision of the original judge.”

Id. at 840 (alteration in original and emphasis added) (quoting Ross v. 

State, 958 So. 2d 442, 443 (Fla. 4th DCA 2007)). We also noted in Peters

that at resentencing, the successor judge emphasized that “his sentence 

was constructed ‘regardless of what [the prior judge] would have done.’” 

Id. at 841. Unfortunately, on the record in this case, we cannot conclude 

the successor judge engaged in the same type of independent assessment.

We reverse and remand, directing the trial court to vacate the sentence 

imposed, and conduct a new sentencing proceeding with the full panoply 

of due process. Because the trial judge who imposed the last sentence has 

retired from the bench, there is no issue regarding whether a successor 

judge should conduct the proceedings.

Reversed and remanded.
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CIKLIN, J., concurs specially with opinion.

GROSS, J., dissents with opinion.

CIKLIN, J., concurring specially.

Because I believe this is somewhat of a “sleeper issue,” I write a 

cautionary concurrence about what may admittedly be an obscure yet 

potential pitfall for an unwary judge or practitioner.

I agree with the dissent’s suggestion that the defendant’s original 

sentence may very well have been “entirely appropriate for the crime 

appellant committed, given his criminal history.” But, respectfully, that 

notion misses the point of the majority opinion: A unanimous three-judge 

panel of this court ordered that the original sentence be vacated and that 

Davis be resentenced with the commensurate panoply of due process 

rights.

By ordering that the original life sentence be vacated because it was

based on a conviction that had been set aside, that life sentence—by 

operation of law—became an immediate nullity, entitling this criminal 

defendant to a de novo resentencing proceeding. That meant, as Justice 

Cantero forcefully characterized it, a “clean slate” including the “full 

panoply” of due process rights as to “all issues bearing on the proper 

sentence.”1 Galindez, 955 So. 2d at 525 (citations omitted).

Yet, here, the lower court expressed its mistaken view that it was not 

appropriate to consider Davis’ substantial evidence of his rehabilitation or 

the over two dozen certificates of achievement that he had earned in prison 

or any of his accomplishments or personal history since the now vacated 

original sentence was imposed. The trial court’s decision in this regard 

was black letter judicial error because Davis was denied his clean slate.

With due respect to the dissent, there is no need for the majority to 

“pour over” the trial judge’s resentencing determination or his analysis as 

1 Davis’s offenses occurred in 1994, and thus Florida’s sentencing guidelines 

applied at the time. Davis’s guideline prison sentencing range was 7 years to 

11.5 years. If Davis qualified as a habitual violent felony offender (HVFO) or 

habitual felony offender, then he could be sentenced up to life imprisonment 

regardless of the guideline recommendation. Davis was, in fact, sentenced to life 

imprisonment as an HVFO. As it turned out, however, that designation became 

an erroneous designation because, as we explained in Davis I, the threshold 

conviction needed to brand Davis as an HVFO (and as the trial court expressly 

used as its basis to impose a life sentence), was declared a legal nullity.
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to why he would not start with a clean slate at a resentencing. We need 

not search for any nuanced wording or phrases uttered by the lower court. 

Even a cursory review of the record reveals it to be immediately apparent 

that a legally cognizable criminal resentencing proceeding did not take 

place below, as ordered by this appellate court and in the manner that the 

law required.

To his credit, the trial judge admitted that he was not prepared “to come 

in at the end here and to say let’s take a [another] look at the crime that 

was committed and [at Davis’s updated personal history since the original 

sentence] . . . to resentence him.”

While the trial court was not prepared to conduct this review, that is 

precisely what solid constitutional precepts required. The failure to do so

sends it back to the trial court—almost automatically.

Thus, the majority need not rely on “flimsy notion[s]” or negotiate “the 

drawing of lines” to decide that the trial court either did not understand 

the legal significance of the court’s unanimous remand in Davis I or did 

not understand the due process requirements attendant to resentencing a 

criminal defendant, or both. 

Again, an obscure potential pitfall for an unwary judge or practitioner.

As the majority opinion indicates in providing direct quotes from the 

trial judge, this is not a matter of “scouring” the words of the trial judge to 

find a reason to once again reverse and remand for resentencing. The trial 

court’s decision to decline to clean the slate and thereafter conduct a de 

novo sentencing hearing was plain record error that denied Davis due 

process under the Fourteenth Amendment to the United States 

Constitution and article 1, section 9 of the Florida Constitution.

We can only hope that a third trial judge will take the necessary steps 

to obviate the need for a Davis III.

GROSS, J., dissenting.

The majority has scoured the trial judge’s words, like a medieval monk 

pouring over sacred text, looking for nuances that would support reversal.

Here, the legal basis for reversal is that the judge violated the 

constitution by failing to exercise “independent judgment.” A failure to 

exercise independent judgment is a flimsy notion upon which to erect a 
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reversal. If law involves the drawing of lines, who can say when 

independent judgment begins and ends?

The majority is reversing a sentence that is entirely appropriate for the 

crime appellant committed, given his criminal history. I agree with the 

state that the trial judge here conducted a de novo sentencing hearing, for 

which he was clearly prepared. The judge exercised his discretion to 

impose the same sentence as the judge who presided over the 1994 trial.

The sad irony of the law is that a judge can shred the Constitution in 

sentencing so long as he does not utter words that give him away. Those 

are cases that courts typically affirm. See, e.g., Charles v. State, 204 So. 

3d 63, 71-74 (Fla. 4th DCA 2016) (Gross, J., dissenting).

* * *

Not final until disposition of timely filed motion for rehearing.