Shaheed v. State

559 S.E.2d 466, 274 Ga. 716, 2002 Fulton County D. Rep. 352, 2002 Ga. LEXIS 64

• Court: Supreme Court of Georgia
• Decided: February 4, 2002
• Docket: S01A1418
• Status: Published

Opinions

Thompson, Justice.

Farah Mahmood Shaheed pled guilty to felony murder and the trial court sentenced him to life in prison. In so doing, the trial court initially granted Shaheed first offender status. Several days later, after learning that it could not treat a murderer as a first offender,¹ the trial court amended Shaheed’s sentence — in his absence — to show that the first offender status was removed.

Shaheed subsequently moved to withdraw his guilty plea. Following a hearing, the trial court denied Shaheed’s motion. Shaheed appeals asserting, inter alia, it was error for the trial court to amend the sentence in his absence.² We agree and reverse.

Our state Constitution guarantees a defendant the right to be present at every stage of a criminal proceeding to enable him to see and know personally what is transpiring in the case. Art. I, Sec. I, Par. XII, Constitution of the State of Georgia; Goodroe v. State, 224 Ga. App. 378, 380 (480 SE2d 378) (1997). “ ‘To say that no injury results when it appears that what occurred in [his] absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.’ [Cits.]” Wilson v. State, 212 Ga. 73, 75 (90 SE2d 557) (1955). Thus, where a defendant is resentenced, or where, as here, a sentence is amended, the defendant should be allowed to be present. Williams v. Ricketts, 234 Ga. 716 (217 SE2d 292) (1975). That is because a resentencing proceeding is a critical stage in which a defendant’s rights may be lost, privileges may be claimed or waived, or in which the outcome of the case can be substantially affected. Ballard v. Smith, 225 Ga. 416, 418 (169 SE2d 329) (1969); Adams v. State, 199 Ga. App. 541, 543 (405 SE2d 537) (1991).

Of course, if resentencing only involves a ministerial function, a defendant need not be present. See Williams v. Ricketts, supra; Jefferson v. State, 209 Ga. App. 859, 860 (434 SE2d 814) (1993); Green v. State, 194 Ga. App. 343, 346 (7) (390 SE2d 285) (1990). In this case, however, the amendment to Shaheed’s sentence was more than ministerial. Why? Because Shaheed originally was sentenced with the expectation that he may receive first offender treatment, and sentence was imposed accordingly.³ When the trial court amended Shaheed’s sentence to eliminate first offender status, it effectively imposed an enhanced sentence without informing Shaheed. This the trial court could not do because Shaheed had a right to rely upon the terms of the original sentencing document. See Dean v. State, 177 Ga. App. 123 (5) (338 SE2d 711) (1985) (defendant is entitled to rely upon sentencing document in absence of evidence of record that he was informed of anything contradictory at the time of sentencing). It follows that the imposition of a harsher sentence, in Shaheed’s absence, was erroneous.

Decided February 4, 2002. Lawrence Lewis, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anna E. Green, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.

Judgment reversed and case remanded.

All the Justices concur, except Carley, J., who dissents.

1 See OCGA §§ 42-8-60; 17-10-6.1.

2 Contrary to the State’s position, we find that this argument was raised below. Even if it were not, it cannot be said that Shaheed waived his right to be present at all stages of the proceedings. See Wilson v. State, 212 Ga. 73 (90 SE2d 557) (1955) (counsel’s waiver of defendant’s right to be present is not binding unless it is made in his presence, or by his express authority).

3 At the time of sentencing, the trial judge, as well as counsel for the State and Shaheed, all expressed doubts concerning the applicability Of first offender treatment. Nevertheless, the trial judge awarded such treatment to Shaheed.