Gonzalez v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003). · Go Syfert
Search
Gonzalez v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 4 distinct courts.
Strongest positive: Neely Petrie-Blanchard v. State of Florida (fladistctapp, 2026-05-01)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Neely Petrie-Blanchard v. State of Florida
Fla. Dist. Ct. App. · 2026 · confidence medium
See Williams v. State, 215 So. 3d 1248, 1249 (Fla. 5th DCA 2017) (“A trial court’s failure to offer counsel for sentencing ordinarily constitutes fundamental error.”); Jackson v. State, 983 So. 2d 562, 566 (Fla. 2008) (noting “denial of counsel for an entire sentencing proceeding would constitute fundamental error”); Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003) (noting “the denial of the right to counsel is fundamental error”); Smith v. State, 41 So. 3d 1081, 1088 (Fla. 2d DCA 2010) (finding per se reversible error where “trial judge did not renew the offer of a…
discussed Cited as authority (rule) Reynaldo Figueroa-Sanabria v. State of Florida
Fla. · 2023 · confidence medium
For - 43 - example, in Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003), the First District Court of Appeal found that the complete denial of counsel at resentencing constituted a fundamental error, and we approved that decision.
discussed Cited as authority (rule) State of West Virginia v. Tex B.S.
W. Va. · 2015 · confidence medium
See People v. Everett, 250 P.3d 649, 664 (Colo.App.2010); Bell v. State, 863 So.2d 458 (Fla.Dist.Ct.App.2004); Gonzalez v. State, 838 So.2d 1242, 1243 (Fla.Dist.Ct.App. 2003); People v. Waldrup, No. 2-10-0309, 2012 WL 6964974 (Ill.App.Ct.
cited Cited as authority (rule) Payne v. State
Fla. Dist. Ct. App. · 2010 · confidence medium
See State v. Scott, 439 So.2d 219, 220 (Fla.1988); Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003).
discussed Cited as authority (rule) Jackson v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
However, rule 9.140(e) provides that "[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to [rule] 3.800(b)." In Brannon v. State, 850 So.2d 452, 456 (Fla. 2003), the court held that "the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [an appellant] from raising the error on direct appeal." In Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003), the appell…
examined Cited as authority (rule) Nickerson v. State (3×) also: Cited "see"
Fla. Dist. Ct. App. · 2006 · confidence medium
"Once a trial court determines that a defendant's sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches." Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003) (citing State v. Scott, 439 So.2d 219, 220 (Fla. 1983)).
cited Cited "see" Jackson v. State
Fla. · 2008 · signal: see · confidence high
See Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003).
cited Cited "see" Laine v. Allstate Insurance
N.D. Fla. · 2005 · signal: see · confidence high
See Laine v. State, 838 So.2d 1242 (Fla. 1st DCA 2003).
discussed Cited "see, e.g." Donald James Smith v. State of Florida
Fla. · 2021 · signal: see also · confidence medium
Jackson v. State, 983 So. 2d 562, 566 (Fla. 2008) (“While a denial of counsel for an entire sentencing proceeding would constitute fundamental error, the temporary absence of counsel [during a victim impact statement] does not.”); see also Gonzalez v. State, 838 So. 2d 1242, 1243 (Fla. 1st DCA 2003) (vacating an indigent appellant’s sentence and remanding for further resentencing after appellant was denied counsel).
discussed Cited "see, e.g." A.G. v. Florida Department of Children & Families
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence medium
See State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) (stating "[d]enial of counsel is always harmful, regardless of the strength of admissible evidence, and can be properly categorized as per se reversible [error]”); see also Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003).
discussed Cited "see, e.g." Wilson v. State
Fla. Dist. Ct. App. · 2007 · signal: see also · confidence low
See State v. Young, 626 So.2d 655, 657 (Fla. 1993); Case v. State, 865 So.2d 557 (Fla. 1st DCA 2004); Sandoval v. State, 884 So.2d 214 (Fla. 2d DCA 2004); see also Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003) (holding that "the lack of representation [at resentencing] is not a sentencing error, but rather a due process error," and thus the issue may be raised on appeal even if it was not preserved).
discussed Cited "see, e.g." Bell v. State
Fla. Dist. Ct. App. · 2004 · signal: see, e.g. · confidence medium
See, e.g., Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003) (“Once a trial court determines that a defendant’s sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches.
Retrieving the full opinion text from the archive…
Isidro G. GONZALEZ, Appellant,
v.
STATE of Florida, Appellee.
1D01-3817.
District Court of Appeal of Florida, First District.
Mar 10, 2003.
838 So. 2d 1242
Per Curiam.
Cited by 15 opinions  |  Published
Pinpoint authority: bottom 51%

[*1243] Isidro G. Gonzalez, Pro Se.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General, and Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges his new sentence upon being re-sentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000). Although the issue of Appellant's lack of representation during the re-sentencing hearing was not properly preserved for appeal, the denial of the right to counsel is fundamental error. See Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998) (holding that the denial of the right to counsel is fundamental error); see also May v. State, 623 So.2d 601, 603 (Fla. 2d DCA 1993) (stating that the Sixth Amendment right to counsel is a fundamental right). Once a trial court determines that a defendant's sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches. See State v. Scott, 439 So.2d 219, 220 (Fla.1983). Sentencing is a critical stage of the criminal proceedings; thus, a sentencing hearing is mandatory. See id. at 221. As such, an indigent defendant is entitled to appointment of counsel at re-sentencing. See id.; see also McDonald v. State, 679 So.2d 1273 (Fla. 1st DCA 1996).

The lack of representation is not a sentencing error, but rather a due process error. Thus, Appellant may properly raise this issue on appeal. Cf. Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001) (holding that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b)). Regardless of whether Appellant requested 122 months in his original motion, he did not expressly waive his right to appointed counsel. There is no waiver of counsel in the record, therefore, the trial court erred in failing to appoint counsel at the re-sentencing hearing. Such error is never harmless. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) ("The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.") (citations omitted); State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) ("Denial of counsel is always harmful, regardless of the strength of the admissible evidence, and can be properly categorized as per se reversible.").

Accordingly, we vacate Appellant's sentence and remand for further re-sentencing.

BOOTH, WOLF and KAHN, JJ., concur.