Thompson v. State, 208 So. 3d 1183

Thompson was originally sentenced to three years probation with a special-condition placement at Spectrum; alleged probation violations included threats to staff, possession of a knife, unauthorized money and medication, and changing residence without consent.
Trial court revoked probation and sentenced Thompson to 15 years in prison; this Court affirmed revocation as to threats and failure to complete Spectrum but reversed as to possession of the knife, money, and medication and vacated the sentence, remanding for resentencing.
Before this Court's mandate issued, the trial court held an August 26, 2015 hearing and resentenced Thompson to 15 years in his absence and without counsel; the mandate issued August 28, 2015.
After Thompson moved to set aside the sentence, the trial court vacated the August 26 sentence but again resentenced Thompson to 15 years on October 29, 2015, relying on the August 26 transcript — again while Thompson was absent and without counsel present at the prior hearing.
Thompson appealed, arguing the trial court lacked jurisdiction to resentence before the mandate, and that resentencing required his presence and counsel; the appellate court reversed and remanded for de novo resentencing before a different judge with Thompson present and represented.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court had jurisdiction to resentence before issuance of this Court's mandate	Thompson: trial court lacked jurisdiction to resentencing prior to mandate	State: proceeded on remand to clarify sentence; no attorney needed	Trial court lacked jurisdiction to sentence on Aug 26 before mandate; that sentence was void and vacated
Whether resentencing after reversal is a ministerial act not requiring defendant's presence	Thompson: resentencing is a new proceeding requiring presence; not ministerial	State: August 26 hearing was merely clarification; presence not required	Resentencing is not ministerial when judge has discretion; defendant must be present at resentencing
Right to counsel at resentencing	Thompson: entitled to counsel at resentencing; denial is fundamental error	State: argued attorney unnecessary for clarification	Resentencing requires the defendant be represented by counsel; denial is fundamental error when counsel absent for resentencing proceedings
Use of findings from hearing where defendant and counsel absent	Thompson: court may not rely on transcript of hearing where he and counsel were absent	State: trial court relied on transcript to restate reasons	Court held it was error to rely on findings from a hearing where Thompson and counsel were absent; resentencing must be de novo with new evidence/argument allowed

Jackson v. State, 767 So. 2d 1156 (Fla. 2000) (defendant's right to be present at critical stages including sentencing)
Jordan v. State, 143 So. 3d 335 (Fla. 2014) (resentencing requires defendant's presence unless purely ministerial)
Dunbar v. State, 89 So. 3d 901 (Fla. 2012) (presence at resentencing recognized)
Payne v. State, 38 So. 3d 827 (Fla. 1st DCA 2010) (denial of counsel at resentencing to correct judicial error is fundamental error)
Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008) (defendant entitled to presence and counsel at new sentencing)
State v. Collins, 985 So. 2d 985 (Fla. 2008) (resentencing is a new proceeding; court not limited by original evidence)
Lucas v. State, 841 So. 2d 380 (Fla. 2003) (resentencing court may consider evidence not presented at original sentencing)
Tucker v. State, 633 So. 2d 1147 (Fla. 2d DCA 1994) (trial court lacks jurisdiction to resentence before appellate mandate)