A defendant has a constitutional right to be present at resentencing proceedings involving judicial discretion, though absence is harmless if a longer concurrent sentence remains intact.
A defendant convicted of burglary and robbery was resentenced in his absence after a post-conviction motion reduced the sentence on the robbery count, while a longer concurrent life sentence on the burglary count remained intact. The question presented is whether a defendant’s presence is required at resentencing when the court reduces one sentence but leaves a longer concurrent sentence intact. The court applies the rule that a defendant has a constitutional right to be present at any resentencing proceeding involving judicial discretion, as such proceedings are not ministerial acts. The court holds that the trial court erred by resentencing the defendant in his absence. However, the court finds the error harmless because the defendant is serving a concurrent life sentence and suffers no practical consequences from the absence.
At page 339 Determining when resentencing is a ministerial act30 citing casesconcluding that a resentencing based on improper imposition of habitual offender designation was not a ministerial act because the trial court has discretion under sentencing guidelines applicable at the time of the offense
- David Puzio v. State of Florida, 320 So. 3d 684 (Fla. 2021).published([A] resentencing at which the trial judge has judicial discretion is not a ministerial act.)
- Donnis T. Foster v. State of Florida, 385 So. 3d 176 (Fla. 2d DCA 2024).published Id. ("[T]he trial court exercised discretion in orally pronouncing a discretionary fine at resentencing, the resentencing was not merely a ministerial act, and Mr. Darwin was entitled to be present.").
- Gilbert Bernard v. State of Florida, 394 So. 3d 86 (Fla. 3d DCA 2024).published(noting that “resentencing a defendant in his absence will be harmless where it involves only a ministerial act)
- Lee v. State, 257 So. 3d 1132 (Fla. 3d DCA 2018).published Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Gonzalez v. State, 221 So. 3d 1225 (Fla. 3d DCA 2017); Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d 2 See §§ 777.04(4)(c), 782.04, Fla. Stat. (2014) (together providing that attempted sec…
- Ricarlo a. Betty v. State of Florida, No. 15-1864 (Fla. 4th DCA Dec. 20, 2017).publishedJordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (first alteration in original).
- Matthew Marana v. State of Florida, 226 So. 3d 329 (Fla. 1st DCA 2017).published (concluding that resen-tencing is not a ministerial act where the trial judge has judicial discretion and where the appellant will suffer practical consequences from the decision)
- Carroll v. State, 225 So. 3d 360 (Fla. 4th DCA 2017).publishedJordan v. State, 143 So.3d 335, 339 (Fla. 2014); Bowen v. State, 196 So.3d 567 (Fla. 4th DCA 2016); see also Jordan v. State, 42 Fla. L.
- Travis M. Carroll v. State of Florida, No. 17-0936 (Fla. 4th DCA Aug. 9, 2017).publishedJordan v. State, 143 So. 3d 335, 339 (Fla. 2014); Bowen v. State, 196 So. 3d 567 (Fla. 4th DCA 2016); see also Jordan v. State, 42 Fla. L.
- Ronald Baker v. State of Florida, 221 So. 3d 1197 (Fla. 4th DCA 2017).publishedJordan v. State, 143 So.3d 335, 339 (Fla. 2014); Bowen v. State, 196 So.3d 567 (Fla. 4th DCA 2016).
- Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017).published “However, Florida’s district courts have found that a resentencing in which a trial judge has discretion as to the new sentence is not a ministerial act and thus requires the defendant’s presence”
Show 20 more citing cases
- Al L. Burgess v. State of Florida, 182 So. 3d 841 (Fla. 4th DCA 2016).published(resentencing after motion to correct based on improper imposition of habitual violent felony offender designation not ministerial because trial court has discretion under sentencing guidelines applicable at the time of…)
- Robert Everett Allen v. State of Florida, 421 So. 3d 708 (Fla. 4th DCA 2025).published(explaining that a defendant has a right to be present at resentencing if the act to be done is not ministerial in nature)
- Roy E. Welch v. State of Florida, 394 So. 3d 800 (Fla. 1st DCA 2024).published(noting that “resentencing a defendant in his absence will be harmless where it only involves a ministerial act)
- Albert E. Narvaez v. State of Florida, 335 So. 3d 721 (Fla. 4th DCA 2022).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014); see also Lecroy v. State, 954 So. 2d 747 , 747-48 (Fla. 4th DCA 2007).
- Albert E. Narvaez v. State of Florida, No. 20-0245 (Fla. 4th DCA Jan. 5, 2022).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014); see also Lecroy v. State, 954 So. 2d 747 , 747–48 (Fla. 4th DCA 2007).
- John Powers v. State of Florida, 316 So. 3d 352 (Fla. 4th DCA 2021).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014).
- Deangelo Lavander Fain v. State of Florida, 308 So. 3d 190 (Fla. 4th DCA 2020).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014).
- Antonio Darwin v. State of Florida, 259 So. 3d 260 (Fla. 2d DCA 2018).published See Jordan, 143 So. 3d at 339 ; Rivers, 980 So. 2d at 600 .
- Antonio Williams v. State of Florida, 252 So. 3d 859 (Fla. 1st DCA 2018).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014); Taylor v. State, 185 So. 3d 1281, 1282 (Fla. 1st DCA 2016).
- Anthony Mcmillan v. State of Florida, 254 So. 3d 1002 (Fla. 4th DCA 2018).publishedSee Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014) (explaining that the right of presence at sentencing does not exist where the resentencing “concerns issues that are purely ministerial in nature” (quoting Acosta v. State, 46 So. 3d 117…
- Alden Benjamin White v. State of Florida, 244 So. 3d 1130 (Fla. 4th DCA 2018).published(finding the defendant’s presence is not required where resentencing “involves only a ministerial act)
- Joe Wayne Bell v. State of Florida, 219 So. 3d 221 (Fla. 1st DCA 2017).publishedSee Jordan v. State, 143 So.3d 335, 339-40 (Fla. 2014). (concluding that a correction to the defendant’s sentence is not a ministerial act where the trial court has discretion in imposing a new sentence); Thompson v. State, 987 So.2d 727,…
- John Gay v. State of Florida, 217 So. 3d 1191 (Fla. 1st DCA 2017).publishedSee Jordan v. State, 143 So.3d 335, 339 (Fla. 2014); Gay v. State, 607 So.2d 454, 456 (Fla. 1st DCA 1992).
- Demetrius Dallas v. State of Florida, 208 So. 3d 335 (Fla. 1st DCA 2017).published(explaining that where the trial court has discretion regarding sentence imposition a defendant must be present)
- Uhler v. State, 176 So. 3d 1022 (Fla. 1st DCA 2015).publishedSee Jordan v. State, 143 So.3d 335, 339-40 (Fla.2014).
- Johnie Earl Larkins v. State, 159 So. 3d 386 (Fla. 4th DCA 2015).published(recognizing that defendant’s presence is not required for a purely ministerial sentence correction)
- Mark Derefaka v. State of Florida, 417 So. 3d 36 (Fla. 4th DCA 2025).published([R]esentencing a defendant in his absence will be harmless where it involves only a ministerial act.” (citing Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006)))
- Chancery Sturrup v. State of Florida, 413 So. 3d 801 (Fla. 4th DCA 2025).published(recognizing that a defendant need not be present for a purely ministerial sentence correction)
- Lenist Key v. State of Florida, 254 So. 3d 1000 (Fla. 4th DCA 2018).published(concluding that a resentencing based on improper imposition of habitual offender designation was not a ministerial act because the trial court has discretion under sentencing guidelines applicable at the time of the off…)
- Colby McCoggle v. State of Florida, 388 So. 3d 810 (Fla. 4th DCA 2024).published
At page 338 Extending right to presence at resentencing hearings12 citing casesFlorida Rule of Criminal Procedure 3.180(a)(9) requires the defendant’s presence ‘at the pronouncement of judgment and the imposition of sentence.’ We have extended this right to resentencing hearings as well.
- Tyrone Jordan v. State of Florida, 344 So. 3d 582 (Fla. 3d DCA 2022).published(Florida Rule of Criminal Procedure 3.180(a)(9) requires the defendant’s presence ‘at the pronouncement of judgment and the imposition of sentence.’ We have extended this right to resentencing hearings as well.)
- Christopher March Renick v. State of Florida, No. 6D2023-2329 (Fla. 6th DCA June 27, 2025).publishedJordan v. State, 143 So. 3d 335, 338-39 (Fla. 2014) (first citing Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); and then citing Acosta v. State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010)).
- Bobby Lee Saviory v. State of Florida, 410 So. 3d 699 (Fla. 6th DCA 2025).publishedJordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (quoting Acosta v. State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010)).
- Christopher March Renick v. State of Florida, 414 So. 3d 401 (Fla. 6th DCA 2025).publishedJordan v. State, 143 So. 3d 335, 338-39 (Fla. 2014) (first citing Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); and then citing Acosta v. State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010)).
- Brown v. Sec'y, Dep't of Corr. (Duval Cnty.), No. 3:18-cv-00772 (M.D. Fla. Apr. 30, 2021).Jordan v. State, 143 So. 3d 335, 338-39 (Fla. 2014).
- Silva v. State, 259 So. 3d 278 (Fla. 3d DCA 2018).publishedAs to the State’s invocation of the concurrent sentence doctrine, the State relies on Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (“in the case of multiple concurrent sentences, an appellate court need not address challenges to every…
- Lee v. State, 257 So. 3d 1132 (Fla. 3d DCA 2018).published Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Gonzalez v. State, 221 So. 3d 1225 (Fla. 3d DCA 2017); Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d 2 See §§ 777.04(4)(c), 782.04, Fla. Stat. (2014) (together providing that attempted sec…
- Ricarlo a. Betty v. State of Florida, No. 15-1864 (Fla. 4th DCA Dec. 20, 2017).published(first alteration in original)
- Gonzalez v. State, 221 So. 3d 1225 (Fla. 3d DCA 2017).published“violation of the right to be present is subject to a harmless error analysis”
- Antonio Darwin v. State of Florida, 259 So. 3d 260 (Fla. 2d DCA 2018).published See Jordan, 143 So. 3d at 339 ; Rivers, 980 So. 2d at 600 .
Show 2 more citing cases
- Poma v. State, 245 So. 3d 977 (Fla. 3d DCA 2018).publishedSee Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016); Brown v. State, 219 So. 3d 866 (Fla. 4th DCA 2017).
- Jermaine Clarington v. State, 314 So. 3d 495 (Fla. 3d DCA 2020).published(reaffirming that a defendant has a right to be present at the pronouncement 21 of judgment and the imposition of sentence, and noting that this right has been extended to resentencing hearings as well)
At page 388 Concurrent sentence doctrine and appellate review scope3 citing cases“concurrent Sentence doctrine provides that in 'the ease of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal”
- Green v. State, 224 So. 3d 252 (Fla. 3d DCA 2017).publishedJordan v. State, 143 So.3d 335, 337 (Fla. 2014) (“The concurrent sentence doctrine provides that in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with…
- Silva v. State, 259 So. 3d 278 (Fla. 3d DCA 2018).publishedAs to the State’s invocation of the concurrent sentence doctrine, the State relies on Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014) (“in the case of multiple concurrent sentences, an appellate court need not address challenges to every…
- Camellon v. State, 178 So. 3d 910 (Fla. 3d DCA 2015).published“concurrent Sentence doctrine provides that in 'the ease of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal o…”
At page 337 Abrogation of the concurrent sentence doctrine1 citing case“the concurrent sentence doctrine provides that in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal.”
- Green v. State, 224 So. 3d 252 (Fla. 3d DCA 2017).published(The concurrent sentence doctrine provides that in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equ…)
At page 340 Judicial discretion in resentencing absent defendant1 citing caserecognizing that defendant’s absence from resentencing proceeding was harmless as defendant was serving longer sentences on counts not subject to resentencing and thus suffered no practical consequence as result of being resen-tenced in his absence
- Gomes v. State, 164 So. 3d 1252 (Fla. 5th DCA 2015).published(recognizing that defendant’s absence from resentencing proceeding was harmless as defendant was serving longer sentences on counts not subject to resentencing and thus suffered no practical consequence as result of bein…)
Other citing cases
- Matson v. State, 264 So. 3d 358 (Fla. 5th DCA 2019).published
v.
STATE of Florida
This case is before the Court for review of the decision of the Third District Court of Appeal in Jordan v. State, 83 So.3d 910 (Fla. 3d DCA 2012). In a subsequent order, the district court amended its opinion to certify the following question of great public importance:
WHETHER THE CONCURRENT SENTENCE DOCTRINE SET FORTH IN FRIZZELL V. STATE, 238 So.2d 67 (Fla.1970), REMAINS VALID AFTER ABOLISHMENT OF THE PAROLE SYSTEM IN FAVOR OF SENTENCING GUIDELINES.
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we rephrase the certified question to read:
WHETHER THE DEFENDANT’S PRESENCE IS REQUIRED AT RE-SENTENCING WHERE THE POST-CONVICTION COURT, PURSUANT TO THE DEFENDANT’S RULE 3.800(a) MOTION, REDUCES THE PRISON SENTENCE AS TO ONE COUNT BUT LEAVES INTACT A LONGER CONCURRENT SENTENCE ON ANOTHER COUNT.
Accordingly, we answer the rephrased certified question in the affirmative and approve the result, but not the reasoning, of the Third District’s decision on the issue of whether the defendant is required to be present at resentencing when the reduction of one sentence leaves a longer concurrent sentence still intact.
FACTS AND PROCEDURAL HISTORY
Tyrone Jordan was convicted of one count of burglary with an assault or battery, a first-degree felony, and one count of strong-arm robbery, a second-degree felony. Jordan, 83 So.3d at 911. The sentencing judge found him to be a habitual violent felony offender (HVFO) under section 775.084(4), Florida Statutes (1993), and sentenced him to concurrent life sentences with fifteen-year mandatory minimums for each conviction. Jordan, 83 So.3d at 911. Jordan filed a Motion to Correct an Illegal Sentence, under Florida Rule of Criminal Procedure 3.800(a), alleging that a life sentence on the second-degree felony conviction was impermissible. Jordan, 83 So.3d at 911. Without holding a hearing, the trial court granted[*337] the motion, vacated the sentence for the robbery count, and resentenced Jordan to the maximum under the statute — thirty years — with a ten-year mandatory minimum, still running concurrently. Id.; § 775.084(4)(b). “Because the life sentence on the burglary count remained unchanged, the trial court determined there was no need to hold a resentencing hearing where [Jordan] could be present.” Jordan, 83 So.3d at 911. Jordan appealed this determination. Id.
The Third District found that Jordan was not constitutionally entitled to be present at resentencing as his resentencing was only a “ministerial act.” Id. (citing Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006) (holding that a defendant is not constitutionally entitled to be present at resentencing where the resentencing is only a ministerial act to correct a prior sentence); Velez v. State, 988 So.2d 707, 708 (Fla. 3d DCA 2008) (finding that re-sentencing on one of two counts is a ministerial act if the defendant is serving a concurrent sentence of equal or greater length)). The district court acknowledged that this Court abrogated the concurrent sentence doctrine in Frizzell, but held that because the parole system was abolished in Florida in favor of sentencing guidelines, the rationale for abrogation of the doctrine is no longer valid. Jordan, 83 So.3d at 911. Thus the Third District affirmed the sentence imposed by the trial court. Id. Jordan filed a Motion for Certification, which the Third District granted, amending its opinion to certify the following question:
WHETHER THE CONCURRENT SENTENCE DOCTRINE SET FORTH IN FRIZZELL V. STATE, 238 So.2d 67 (Fla.1970), REMAINS VALID AFTER ABOLISHMENT OF THE PAROLE SYSTEM IN FAVOR OF SENTENCING GUIDELINES.
ANALYSIS
The concurrent sentence doctrine provides that in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal. See Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). In Frizzell, we abrogated the doctrine in habeas corpus cases in Florida. 238 So.2d at 69. However, it appears from the Third District’s opinion and the language of the certified question that the district court misconstrued our opinion in Frizzell. The district court’s opinion reads, “We recognize that the Florida Supreme Court abrogated this concurrent sentence doctrine [in Frizzell] in 1970. There the court concluded that concurrent resentencing was a crucial stage requiring the defendant’s presence because of the possibility of obtaining more favorable consideration for parole.” Jordan, 83 So.3d at 911 (citation omitted). However, nowhere in Frizzell did this Court reach such a conclusion or use any language relating to a defendant’s presence at resentencing. Additionally, Frizzell did not abrogate the concurrent sentence doctrine in all cases,[1] only in those involving a writ of habeas corpus. Frizzell, 238 So.2d at 69 (“From henceforth this Court will consider the merits of petitions for habeas corpus even though the petitioner is not entitled to be released if successful in his attack on a conviction, and regardless of whether the sentences[*338] are concurrent or consecutive.”). Thus, Frizzell does not apply to the instant case.
Furthermore, the Third District’s opinion implies that the rule of law the district court developed in Velez and relied on in its decision below constitutes the concurrent sentence doctrine. See Jordan, 83 So.3d at 911 (citing Velez, then stating, “We recognize that the Florida Supreme Court abrogated this concurrent sentence doctrine in 1970” (emphasis added)). However, the concurrent sentence doctrine provided that appellate courts may decide not to address a challenge to a conviction if another conviction with a concurrent sentence of equal or greater length will remain intact. The Third District’s decisions in Velez and the instant case do in fact address such a challenge — by finding that any reduction to the challenged sentence in such circumstances constitutes a “ministerial act” not requiring the defendant’s presence at resentencing. As such, in neither the instant case nor in Velez was the Third District applying the concurrent sentence doctrine.
Because both Frizzell and the concurrent sentence doctrine are inapplicable to the case at bar, we rephrase the certified question as follows:
WHETHER THE DEFENDANT’S PRESENCE IS REQUIRED AT RE-SENTENCING WHERE THE POST-CONVICTION COURT, PURSUANT TO THE DEFENDANT’S RULE 3.800(a) MOTION, REDUCES THE PRISON SENTENCE AS TO ONE COUNT BUT LEAVES INTACT A LONGER CONCURRENT SENTENCE ON ANOTHER COUNT.
For the reasons outlined below, we answer this question in the affirmative.
I. Was Jordan’s Presence Required?
“[0]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). Florida Rule of Criminal Procedure 3.180(a)(9) requires the defendant’s presence “at the pronouncement of judgment and the imposition of sentence.” 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).
Thus, “[a] defendant has a right to be present and to be represented by counsel at any resentencing proceeding from a rule 3.800(a) motion,” Acosta v. State, 46 So.3d 1179, 1180 (Fla. 2d DCA 2010), and Jordan was entitled to be present at his resentencing. The trial court committed error by resentencing Jordan in his absence.[2]
II. Was The Error Harmless?
A violation of the right to be present is subject to a harmless error anal[*339]ysis. See 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 8.180(a), the burden is on the state to show beyond a reasonable doubt that the error (absence) was not prejudicial.” Garcia v. State, 492 So.2d 360, 364 (Fla.1986). “[WJhile rule 3.180(a) determines that the involuntary absence of the defendant is error in certain enumerated circumstances, it is the constitutional question of whether fundamental fairness has been thwarted which determines whether the error is reversible.” Id. Under this standard, we have found harmless error where the defendant suffered no prejudice from his absence, “the defendant would not have been able to assist his counsel in opposing adverse rulings,” or “no adverse rulings were made outside the defendant’s presence.” Ault v. State, 53 So.3d 175, 202 (Fla.2010) (citing Pomeranz v. State, 703 So.2d 465, 471 (Fla.1997); Roberts v. State, 510 So.2d 885, 890-91 (Fla.1987); Garcia, 492 So.2d at 363).
The Third District is correct that resentencing a defendant in his absence will be harmless where it involves only a ministerial act. Orta, 919 So.2d at 604; Acosta, 46 So.3d at 1180 (explaining that the right of presence does not exist where the resentencing “concerns issues that are purely ministerial in nature”). However, Florida’s district courts have found that a resentencing in which a trial judge has discretion as to the new sentence is not a ministerial act and thus requires the defendant’s presence.[3] The Third District itself has stated, “A defendant will receive a new sentencing hearing if the resentencing involves additional consideration or sentencing discretion, not if the act to be done is ministerial in nature, such as striking an improper portion of the sentence.” Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008) (emphasis added). Therefore, a resentencing at which the trial judge has judicial discretion is not a ministerial act.
The instant resentencing was not ministerial because the trial court had discretion as to Jordan’s new sentence. At the initial sentencing, Jordan was deemed a habitual violent felony offender under section 775.084(4). This section dictates that the trial court sentence such an offender convicted of a second-degree felony to “a term of years not exceeding 30, and such offender shall not be eligible for release for 10 years.” § 775.084(4)(b)2. It is clear from this language that while the ten-year mandatory minimum is required to be imposed, the trial court had the discretion to sentence Jordan to anywhere from ten to thirty years’ imprisonment. See, e.g., Burdick v. State, 594 So.2d 267, 270 n. 8 (Fla.1992) (noting that when a[*340] defendant is classified as a habitual offender, the trial judge maintains sentencing discretion). Additionally, although Jordan’s original sentence of life imprisonment appears to demonstrate the trial judge’s intent to sentence Jordan to the maximum allowable punishment, the judge was not obligated to maintain that same intent at resentencing. Orta, 919 So.2d at 604 (“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. Mullins, 997 So.2d at 445.
Although the resentencing here was not a ministerial act, the error is still harmless because Jordan is serving a concurrent, true life sentence on the burglary count and will suffer no practical consequences as a result of being resentenced in his absence on the robbery count. Under these circumstances, Jordan is not entitled to relief.
CONCLUSION
Resentencing Jordan in his absence was error because, under rule 3.180(a), he was entitled to be present. However, the error is harmless because Jordan is serving a concurrent, true life sentence on another count, with no practical consequences. Accordingly, we approve the result, but not the reasoning of the decision of the Third District below.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur. CANADY, J., concurs in result.This fact is evidenced by the Florida cases in which the doctrine has still been applied after 1970: Foxx v. State, 392 So.2d 48 (Fla. 3d DCA 1981); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977).
The Third District’s analysis focused on the fact that Jordan was being resentenced on only one count, while his longer, concurrent sentence of life imprisonment would remain intact. Jordan, 83 So.3d at 911. However, that fact is more relevant to a harmless error analysis than to a determination of whether the defendant had a right to be present.
Frison v. State, 76 So.3d 1103, 1104-05 (Fla. 5th DCA 2011) (rejecting State’s argument that defendant's resentencing was merely ministerial because, although parties agreed that life sentence was illegal, imposition of a forty-year sentence was not mandatory, thus trial court had discretion on re-sentencing); Acosta, 46 So.3d at 1180-81 (explaining that while a fifteen-year mandatory minimum requirement limited the trial court's discretion at the original sentencing hearing, the removal of that requirement restored sentencing discretion to the trial judge, and thus "the resentencing was no longer a ministerial act”); Cross v. State, 18 So.3d 1235, 1235-36 (Fla. 1st DCA 2009) (relying on Mullins v. State, 997 So.2d 443 (Fla. 3d DCA 2008), to reject State’s argument that striking the minimum mandatory term was merely ministerial where parties and court falsely believed the 10/20/Life minimum mandatory sentence applied); Lecroy v. State, 954 So.2d 747, 748 (Fla. 4th DCA 2007) (finding resentencing to be ministerial where trial court had no discretion to vary from this Court's mandate of a specific sentence to be imposed on resentencing).