Andre Frison [“Frison”] appeals the sentence that he received upon resentenc-ing. He contends it was error to resen-tence him without counsel. We agree and reverse.
Frison was sentenced in 1989 to life in prison for sexual battery with a deadly weapon pursuant to section 794.011(2), Florida Statutes (1987). He was originally sentenced to 100 years in prison, but, after his appeal, he was resentenced to life in prison.
Frison then filed a
pro se
rule 3.800 motion to correct illegal sentence seeking resentencing on the basis of
Graham v. Florida,
— U.S.—,
On appeal, Frison contends that he was denied due process because he did not receive notice of sentencing, he was not allowed to speak at the hearing, and, most notably, that he was not represented by an attorney.
In both capital and noncapital cases, our supreme court has held that resentencing is a new proceeding.
State v. Collins,
The State acknowledges that a defendant is entitled to counsel at a resentenc-ing hearing, even when a rule 3.800(a) motion is granted. However, the State asserts that this is not required when the trial court is merely conducting a ministerial act. The State contends that Frison’s resentencing was merely “ministerial” be *1105 cause all of the parties agreed that, under Graham, Frison’s life sentence was illegal; therefore, the only option remaining upon resentencing was the imposition of a forty-year sentence. In other words, the State asserts that the imposition of the forty-year sentence was mandatory; thus, there was no need for appointed counsel.
Frison was originally convicted of sexual battery with a deadly weapon, a life felony under section 794.011(3), Florida Statutes (1987). The 1987 version of section 794.011 states:
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Section 775.082(3), Florida Statutes (1987) states in pertinent part:
(3) A person who has been convicted of any other designated felony may be punished as follows:
(a) For a life felony committed prior to October 1, 1983, by a term of imprisonment for life or for a term of years not less than 30 and, for a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term, of imprisonment not exceeding W years.
(Emphasis added). The emphasized language of section 775.082(3)(a) gives the court the discretion to sentence Frison to less than forty years. Moreover, Frison was entitled to be heard on the community control and life probation. Frison is entitled to a new resentencing hearing and to counsel.
SENTENCE VACATED and REMANDED.
Notes
. The United States Supreme Court held that "the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”