Daly v. State

District Court of Appeal of Florida

Daly v. State

940 So. 2d 532, 2006 Fla. App. LEXIS 17636, 2006 WL 3019935

CourtDistrict Court of Appeal of Florida

DecidedOctober 25, 2006

DocketNo. 2D06-530

StatusPublished

This text of 940 So. 2d 532 (Daly v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Daly v. State, 940 So. 2d 532, 2006 Fla. App. LEXIS 17636, 2006 WL 3019935 (Fla. Ct. App. 2006).

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Opinion

SILBERMAN, Judge.

Ronald James Daly appeals his sentence for burglary of a dwelling with assault or battery imposed at a resentencing hearing after the postconviction court granted his motion for postconviction relief. Because, as the State concedes, Daly was resen-tenced without counsel, we reverse his sentence and remand for another resentenc-ing hearing.

A criminal defendant has the right to the assistance of counsel at a resentencing hearing when the original sentencing error was a judicial error rather than a clerical error. See Nickerson v. State, 927 So.2d 114, 117 (Fla. 2d DCA 2006); see also Wells v. State, 789 So.2d 1092, 1093 (Fla. 2d DCA 2001) (“An indigent prisoner is entitled to the appointment of counsel at resentencing following a successful motion for postconviction relief.”). Here, the postconviction court granted relief based on a judicial error in sentencing but resentenced Daly without the assistance of counsel. Daly did not waive his right to counsel. In fact, he told the postconviction court that he wanted but could not afford counsel. The court did not address Daly’s indigency or appoint counsel for resentencing even though the court had previously appointed counsel for Daly and subsequently appointed counsel for this appeal.

Therefore, we reverse Daly’s sentence and remand for a resentencing hearing at which Daly shall have the right to be represented by counsel, unless he waives that right. See Nickerson, 927 So.2d at 118.

Reversed and remanded for resentenc-ing.

KELLY and WALLACE, JJ., Concur.

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SILBERMAN, Judge.

Ronald James Daly appeals his sentence for burglary of a dwelling with assault or battery imposed at a resentencing hearing after the postconviction court granted his motion for postconviction relief. Because, as the State concedes, Daly was resen-tenced without counsel, we reverse his sentence and remand for another resentenc-ing hearing.

A criminal defendant has the right to the assistance of counsel at a resentencing hearing when the original sentencing error was a judicial error rather than a clerical error. See Nickerson v. State, 927 So.2d 114, 117 (Fla. 2d DCA 2006); see also Wells v. State, 789 So.2d 1092, 1093 (Fla. 2d DCA 2001) (“An indigent prisoner is entitled to the appointment of counsel at resentencing following a successful motion for postconviction relief.”). Here, the postconviction court granted relief based on a judicial error in sentencing but resentenced Daly without the assistance of counsel. Daly did not waive his right to counsel. In fact, he told the postconviction court that he wanted but could not afford counsel. The court did not address Daly’s indigency or appoint counsel for resentencing even though the court had previously appointed counsel for Daly and subsequently appointed counsel for this appeal.

Therefore, we reverse Daly’s sentence and remand for a resentencing hearing at which Daly shall have the right to be represented by counsel, unless he waives that right. See Nickerson, 927 So.2d at 118.

Reversed and remanded for resentenc-ing.

KELLY and WALLACE, JJ., Concur.

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940 So. 2d 532, 2006 Fla. App. LEXIS 17636, 2006 WL 3019935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daly-v-state-fladistctapp-2006.

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