DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RICARLO A. BETTY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-1864

[December 20, 2017]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert E. Belanger, Judge; L.T. Case No. 56-2007-CF000147A.

Ricarlo A. Betty, Arcadia, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, 

Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

Ricardo A. Betty (“Appellant”) appeals the order denying his motion to 

set a hearing date for the de novo sentencing hearing granted as postconviction relief. Because the original sentencing judge summarily and 

improperly found a de novo sentencing hearing “unnecessary” after a 

different trial court judge ruled such relief was warranted, we reverse and 

remand for a new sentencing hearing before a different judge.

Background

In 2008, Appellant was convicted after trial of two counts of robbery 

with a deadly weapon while masked and was sentenced to life in prison on 

each count. Appellant’s judgment and sentence were affirmed on direct 

appeal. Betty v. State, 22 So. 3d 558 (Fla. 4th DCA 2009).

In 2011, Appellant moved for post-conviction relief raising several 

grounds. The motion was heard by a judge who did not preside over the 

trial and sentencing. The trial court denied post-conviction relief except 

for one ground, in which Appellant asserted ineffective assistance of 
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counsel for failure to advise Appellant of his youthful offender eligibility 

and argue for a youthful offender sentence. The trial court found sufficient 

prejudice on that ground to grant Appellant a de novo sentencing hearing 

in front of the original sentencing judge to enable that judge to consider 

whether Appellant should be classified and sentenced as a youthful 

offender. The written order granting relief stated:

The parties may contact the sentencing judge for hearing time 

at a mutually convenient time and/or file an appeal within 

thirty days.

(emphasis added). 

Appellant appealed the denial of post-conviction relief on the same 

grounds for which relief was not granted, before seeking a new sentencing 

hearing. This Court per curiam affirmed the denial as to those grounds. 

Betty v. State, 138 So. 3d 1037 (Fla. 4th DCA 2014). 

After his post-conviction relief appeal was resolved, Appellant filed a pro 

se motion to set a hearing date for the de novo sentencing hearing granted 

in the trial court’s 2011 order. Appellant’s motion for a de novo sentencing 

was denied without a hearing by the original sentencing court. The order 

denying the motion stated, without any citation to authority, that the 

original sentencing court “d[id] not believe” it had jurisdiction to hold a 

sentencing hearing after Appellant filed the appeal of the post-conviction 

order. Alternatively, the original sentencing court found that even if it did 

have jurisdiction, a de novo hearing was “unnecessary,” reasoning that the

original sentencing court had presided over Appellant’s trial and 

sentencing and had reviewed the transcripts of both proceedings, and 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. The original sentencing court noted that Appellant 

scored 13.9 years in prison with a minimum mandatory of ten years, but 

that it had imposed two life sentences on Appellant, attaching portions of 

the sentencing transcript reflecting the sentence. Therefore, the original 

sentencing court denied Appellant’s motion for a de novo resentencing 

hearing. 

Appellant gave notice of appeal of the order denying a de novo

sentencing.

Appellate Analysis

As our supreme court has explained:
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“[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.” Jackson v. State, 767 So.

2d 1156, 1159 (Fla. 2000). . . . We have extended this right 

to resentencing hearings as well. See Jackson, 767 So. 2d at 

1160 (finding that defendant’s presence would contribute to 

the fairness of the procedure and thus extending the right to 

be present to the hearing where the sentence will be 

reconsidered); Griffin v. State, 517 So. 2d 669, 670 (Fla. 1987)

(finding presence of defendant necessary at resentencing so 

that defendant has the opportunity to submit evidence 

relevant to the sentence, if warranted); State v. Scott, 439 So.

2d 219, 221 (Fla. 1983) (finding defendant entitled to be 

present at a sentencing correction in the same manner and to 

the same degree as when the defendant was originally 

sentenced). 

Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (first alteration in original). 

“A violation of the right to be present is subject to a harmless error 

analysis.” Id. at 338-39 (citing Smithers v. State, 826 So. 2d 916, 927 (Fla.

2002)). “In other words, when the defendant is involuntarily absent during 

a crucial stage of adversary proceedings contrary to rule 3.180(a), the 

burden is on the state to show beyond a reasonable doubt that the error 

(absence) was not prejudicial.” Id. at 339 (quoting Garcia v. State, 492 So.

2d 360, 364 (Fla. 1986)).

Appellant argues on appeal that the sentencing judge erred in denying 

his motion for de novo sentencing hearing after post-conviction relief was 

granted based on ineffective assistance of counsel at sentencing. 

Appellant contends a de novo sentencing hearing was required for 

consideration of sentencing him as a youthful offender, with Appellant and 

his counsel present to offer evidence and argument on the issue. Appellant 

further argues that resentencing in the procedural context of this case 

would not constitute a ministerial act, because resentencing would require 

an exercise of the trial court’s discretion.

We agree with Appellant that, once the trial court determines that de 

novo resentencing is appropriate, the defendant is “entitled to a de novo

sentencing hearing with the full array of due process rights.” Webb v. 

State, 805 So. 2d 856, 857 (Fla. 2d DCA 2001) (quoting St. Lawrence v. 

State, 785 So. 2d 728, 729-30 (Fla. 5th DCA 2001)). It is further well 

established that “a defendant is entitled to be present and represented by 

counsel at [a] resentencing proceeding . . . unless resentencing involves 
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only a ministerial act.” Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th 

DCA 2016) (citing Jordan, 143 So. 3d at 338). Furthermore, “[a] 

resentencing at which the trial judge has judicial discretion is not a 

ministerial act.” Id. (citing Jordan, 143 So. 3d at 339-40).

In this case, it was undisputed that Appellant was eligible to be 

classified and sentenced as a youthful offender, and the trial court 

granting post-conviction relief determined that he was entitled to a de novo 

sentencing hearing. We agree with Appellant that resentencing would not 

be a ministerial act. Our supreme court has held that although an original 

sentence of life imprisonment may appear to demonstrate a trial judge’s 

intent to sentence a defendant to the maximum allowable punishment, the 

judge is “not obligated to maintain that same intent at resentencing.” 

Jordan, 143 So. 3d at 340 (citing Orta v. State, 919 So. 2d 602, 604 (Fla. 

3d DCA 2006) (“Although the trial court originally pronounced its intention 

to sentence the defendant to ‘the bottom of the guidelines,’ it was not 

obligated to do so.”)); Phillips v. State, 705 So. 2d 1320, 1322 (Fla. 1997)

(quoting King v. Dugger, 555 So. 2d 355, 358-59 (Fla. 1990) (“Phillips’ 

resentencing proceeding was a ‘completely new proceeding,’ and the trial 

court was therefore under no obligation to make the same findings as 

those made in Phillips’ prior sentencing proceeding.”)). “Thus, the judicial 

discretion present in this case eliminates the ministerial nature of the 

resentencing.” Jordan, 143 So. 3d at 340 (citing Mullins v. State, 997 So. 

2d 443, 445 (Fla. 3d DCA 2008)).

The State’s argument that Appellant waived the de novo sentencing 

hearing by choosing to appeal the denial of post-conviction relief on other 

grounds lacks merit. The State supports this proposition by referring to 

the trial court’s language in the order that: “The parties may contact the 

sentencing judge for hearing time at a mutually convenient time and/or

file an appeal within thirty days.” (emphasis added). However, the State 

ignores the “and” portion of the “and/or” language and simply argues that 

the wording of the order “clearly states that Appellant was told he could 

set the case down for a hearing or file an appeal.” We read the “or” 

language to contemplate the possibility that Appellant may decide not to 

appeal the claims for post-conviction relief denied and be satisfied with a 

de novo sentencing hearing. We read the “and” language to contemplate 

the possibility that Appellant may appeal the claims denied and 

subsequently proceed with a de novo sentencing hearing if the appeal 

failed. We do not agree with the State that we should read the “and/or” 

language to mean the trial court was granting post-conviction relief on one 

ground, conditioned on Appellant not filing an appeal as to the other 

grounds.
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We also disagree with the State’s argument that the sentencing court 

properly determined that a de novo sentencing hearing was “unnecessary”

because the sentencing judge, in the order denying the hearing, indicated 

that he would not have sentenced Appellant as a youthful offender, even 

had the argument been made at sentencing. While it is true the decision 

whether to impose a youthful offender sentence was up to the judge’s 

discretion, Appellant was entitled to a de novo hearing in which he could 

present any further evidence not presented at the original sentencing and 

make arguments not previously raised. The original sentencing court 

could not properly exercise discretion on the issue without hearing such 

evidence and argument first.

We therefore quash the order denying Appellant’s motion for a de novo

sentencing hearing and remand the case for further proceedings before a 

judge other than the original sentencing judge. Appellant, represented by 

counsel, must be present for the de novo sentencing. We recognize the 

order granting post-conviction relief specifically ordered a de novo

sentencing by the original sentencing judge. However, 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.

Reversed and remanded with instructions.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.