Acosta v. State, 2010 Fla. App. LEXIS 16734

In 2003 Acosta pleaded no contest to trafficking cocaine (≥400 g), cannabis (≥20 g), and drug paraphernalia; he was adjudicated guilty and sentenced to a complex mix of prison terms, community control, and probation.
In 2004 Acosta impermissibly left the U.S. for the Dominican Republic, violating community control.
In 2008, after law enforcement returned him, a revocation hearing was held with Acosta and counsel; he was found in violation and sentenced to a 15-year term for trafficking and 5 years for cannabis.
Acosta moved under Florida Rule of Criminal Procedure 3.800(a); the trial court granted relief by removing the mandatory minimum, resentencing to 15 years for trafficking without the MM, but without Acosta or his counsel present.
Acosta argued this resentencing violated due process under Cross v. State; the State conceded error; the court remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether resentencing without presence/counsel was error	Acosta	State	Yes, error; presence required where not ministerial
Whether 3.800(a) resentencing can occur without a hearing when non-ministerial	Acosta	State	Remand required for proper hearing
Whether removal of mandatory minimum changed the act from ministerial	Acosta	State	Remand to allow presence and counsel

Williams v. State, 957 So.2d 600 (Fla. 2007) (discrepancy between oral and written sentence cognizable in rule 3.800(a))
Cross v. State, 18 So.3d 1235 (Fla. 1st DCA 2009) (striking minimum mandatory term not ministerial; requires further proceedings)
Rivers v. State, 980 So.2d 599 (Fla. 2d DCA 2008) (presence at resentencing generally required unless ministerial)
Bines v. State, 837 So.2d 1146 (Fla. 1st DCA 2003) (presence required in non-ministerial resentencing)
Mullins v. State, 997 So.2d 443 (Fla. 3d DCA 2008) (resentencing within trial court’s discretion not ministerial)