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 
2

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.
3

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 
4

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 
5

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.