### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ROD LEE BRUCE
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 19

- 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, Attorn ey General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

D AMOORGIAN

, J.

Rod L ee Bruce (“Defendant”) appeals the trial court’s resentencing order

which was entered on remand after this Court reversed an d 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 sent ences, 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’s2 previous offense did not qualif y 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 mo st of his life. You r 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

discr etion 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, t he 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, t he remainder of the hearing focused on whether to impose the PRR sentences concurrently or consecutively. Ultimately, t he 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 r ule 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, conclud ing 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 re versed 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 pr oper 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 requ ired 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 sentence s had been remanded on ly “for the

state to prove up the documentation of the PRR .” Id. at 353. After the trial4 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

rese ntencing 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 th at 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 heari ng 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 qual ified 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 sup port 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 if5 the defendant stipulates that he qualifies as a habitual felon y 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 co nduct 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 resent encing 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 he aring 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 “g iven 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,

un like 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 app eal. 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 prove n 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

.

C IKLIN and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.