Opinion
5D2023-3696
08-23-2024
Ron Alston, Appellant, v. State of Florida, Appellee.
Matthew J. Metz, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Marissa V. Giles, Assistant Attorney General, Daytona Beach, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Seminole County. LT Case No. 2012-CF-003671-A, Donna M. Goerner, Judge.
Matthew J. Metz, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Marissa V. Giles, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant Ron Alston appeals the trial court's revocation of his probation and resulting prison sentence. We affirm without comment his probation revocation.
However, we reverse the sentence because the trial court imposed the previously suspended twelve-year sentence without affording Alston a sentencing hearing. While the sentence imposed was clearly lawful and within the discretion of the trial court, the imposition of sentence-without allowing Alston an opportunity to present evidence and argument regarding his sentence-was not. See Witt v. State, 983 So.2d 708 (Fla. 5th DCA 2008). As the State rightly concedes before this Court, doing so was fundamental error that violated Alston's constitutional right to due process. See Smith v. State, 268 So.3d 831, 834 (Fla. 1st DCA 2019) ("A trial court's refusal to hear evidence and argument regarding a sentence constitutes a denial of due process and is fundamental error.").
Accordingly, we affirm the revocation of Alston's probation but reverse the sentence imposed. The case is remanded to the trial court for a sentencing hearing to be conducted before a new trial judge. See id. at 834-35.
AFFIRMED in part; REVERSED in part and REMANDED for further proceedings consistent with this opinion.
EDWARDS, C.J., and SOUD and BOATWRIGHT, JJ., concur.