Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL WAYNE SCOTT, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. No. 2D20-998 December 29, 2021 Appeal from the Circuit Court for Hillsborough County; Barbara Twine-Thomas, Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant. NORTHCUTT, Judge. Following resentencing, juvenile offender Michael Scott appeals his concurrent twenty-five-year sentences for robbery with a firearm and aggravated battery with a firearm. He raises arguments concerning the constitutionality of the sentences, the timeliness of a motion to withdraw plea that he filed prior to resentencing, and the circumstances surrounding the revocation of the State's plea offer. The State also cross-appeals the postconviction court's initial order granting resentencing. We affirm the order granting Scott resentencing and see no error in Scott's challenge to the State's revocation of its plea offer, but we reverse the denial of Scott's motion to withdraw plea because the motion was timely and should have been considered on the merits. As a consequence of that disposition, we do not reach the constitutionality of Scott's sentence. In 2007, Scott entered an open guilty plea to one count of robbery with a firearm and one count of aggravated battery with a firearm, offenses that he committed when he was fourteen years old. The trial court rejected Scott's request for a youthful offender sentence and instead sentenced Scott to concurrent mandatory minimum terms of twenty-five years in prison. In 2017, Scott filed a Florida Rule of Criminal Procedure 3.850 motion seeking postconviction relief. In the motion, he raised 2 several claims related to recent changes to juvenile sentencing laws. The postconviction court ordered the State to respond, and the State agreed that Scott "is entitled to be resentenced." The postconviction court then vacated Scott's sentence and ordered that he be resentenced. In 2019, prior to resentencing, Scott filed a motion to withdraw his plea, which the postconviction court denied as untimely under rule 3.170(l) because Scott had filed the motion more than thirty days after his original sentence. The court ultimately resentenced Scott to the same concurrent twenty-five- year mandatory minimum sentences, but with the addition of an entitlement to review after twenty years. Scott now appeals those new sentences. The State also cross-appeals, arguing that Scott's original sentence was constitutional and that Scott therefore was not entitled to resentencing in the first place. Addressing the State's cross-appeal first, the State is estopped from arguing that Scott was never entitled to resentencing. In the trial court, the State admitted Scott was entitled to a new sentence. It cannot now argue the contrary. See Harper ex rel. Daley v. Toler, 884 So. 2d 1124, 1135 (Fla. 2d DCA 2004) ("[A] party may not 3 ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal."). We therefore affirm the order granting resentencing and reject the State's arguments on cross-appeal. As for Scott's issues, we first reject Scott's contention that the postconviction court erred in allowing the State to revoke a plea deal that it had offered Scott during resentencing proceedings. After Scott had been granted resentencing, the State offered him a twenty-year sentence. But because the postconviction court expressed to the parties that it was not yet sure whether it was bound to impose a mandatory minimum sentence and wanted to take some time to review the law on that issue, Scott decided to not make a decision on the offer until the court made a determination regarding the applicability of the mandatory minimum. However, by the time the court made that decision, the State had revoked the offer. Scott moved for the court to allow him to accept the offer, complaining that the court's indecisiveness "placed [him] at great disadvantage" and denied him due process. The court denied the motion, reasoning that Scott had rejected the offer and that it is within the State's discretion to withdraw an offer. 4 The postconviction court was correct on both accounts. First, the record supports the court's finding that Scott did indeed reject the offer, as Scott's counsel at one point stated, "Mr. Scott does not wish to accept [the offer] and he wishes to have his case set for resentencing . . . ." Second, the State has wide discretion in extending and withdrawing plea offers, with rule 3.172(g) providing that "[n]o plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification." (Emphasis added.) By waiting until the court made a decision on the applicability of the mandatory minimum sentence, Scott assumed the risk that the offer could be withdrawn. He gambled on a positive outcome, with the consequence of that gamble being the retraction of the offer. Such retraction was within the State's discretion, and the court had no power to compel the State to keep it open. Cf. Feldpausch v. State, 826 So. 2d 354, 357 (Fla. 2d DCA 2002) ("This court has no authority to require the State to reoffer its original plea offer."). 5 However, we agree with Scott's assertion that the postconviction court erred in denying his rule 3.170 motion to withdraw plea as untimely. Rule 3.170 has two subdivisions relating to the withdrawal of a plea. Subdivision (f) addresses the withdrawal of a plea before sentencing and specifically states that "[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn." (Emphasis added.) Subdivision (l) addresses the withdrawal of a plea after sentencing and allows a defendant to withdraw his plea "within thirty days after rendition of the sentence" on certain enumerated grounds. The question presented here is which of these subdivisions applies during the period after a defendant's original sentence has been vacated but before a new one has been imposed. A motion filed during that time period would be timely under subdivision (f) but untimely under subdivision (l). Scott argues that because the postconviction court set aside his original sentences and ordered that he be sentenced anew, he was returned to a presentence position and was allowed to file a motion under subdivision (f). The State, on the other hand, contends that for the purposes of a 6 motion to withdraw plea only the original sentencing date matters and that under rule 3.170(l) Scott therefore had until thirty days after his original sentencing in 2007 in which to move to withdraw his plea. Scott's position is supported first by the plain language of rule 3.170(f), which states that a defendant may move to withdraw a plea at any time before "a sentence." The use of the nonexclusive "a" suggests that it applies to any sentencing proceeding, whether that be the initial sentencing or a subsequent resentencing. Second, it is well established that when a defendant is granted resentencing, the original sentence is rendered a nullity and the sentencing process begins anew: In both capital and noncapital cases, we have held that resentencing is a new proceeding. In death penalty cases, we have stated that "[t]he basic premise of sentencing procedure is that the sentencer is to consider all relevant evidence regarding the nature of the crime and the character of the defendant to determine appropriate punishment." Wike v. State, 698 So. 2d 817, 821 (Fla. 1997). Thus, we have recognized that a resentencing must proceed "as an entirely new proceeding," id., and that a "resentencing should proceed de novo on all issues bearing on the proper sentence." Teffeteller v. State, 495 So. 2d 744, 745 (Fla. 1986). In noncapital cases, too, we have concluded that "resentencing entitles the defendant to a de novo sentencing hearing with the full array of due process 7 rights." Trotter v. State, 825 So. 2d 362, 367–68 (Fla. 2002); see also Galindez v. State, 955 So. 2d 517, 525 (Fla. 2007) (Cantero, J., specially concurring) ("We have consistently held that resentencing proceedings must be a 'clean slate,' meaning that the defendant's vacated sentence becomes a 'nullity' and his 'resentencing should proceed de novo on all issues bearing on the proper sentence.' " (citation omitted)); [Walker v. State, 988 So. 2d 6, 8 (Fla. 2d DCA 2007)] (Altenbernd, J., concurring specially) ("Generally, courts have held that once a defendant successfully challenges his sentence on appeal and the cause is remanded for resentencing, the resentencing is a 'de novo' proceeding, at which either side may present evidence anew regarding the appropriate sentence."). State v. Collins, 985 So. 2d 985, 989 (Fla. 2008); see also Fox v. State, 166 So. 3d 894, 896 (Fla. 4th DCA 2015) (reviewing a rule 3.170(l) motion in the context of sentence mitigation and noting that "[b]ecause resentencing is a new proceeding, the sentencing process starts afresh"). Third, and perhaps most instructively, courts have held that the completion of resentencing starts a new thirty-day clock for a postsentencing motion under rule 3.170(l). See Chipman v. State, 285 So. 3d 1005, 1006 (Fla. 2d DCA 2019); Passino v. State, 174 So. 3d 1055, 1056–57 (Fla. 4th DCA 2015). The import of that conclusion is that if the imposition of a new sentence following resentencing affords a defendant the same plea-withdrawal rights 8 that he possessed following the rendition of his original sentence, the revocation of a defendant's original sentence should likewise grant the defendant the same presentencing plea-withdrawal rights he enjoyed before. Further, if "the sentence," as it is called in rule 3.170(l), includes a new sentence imposed after resentencing, we see no reason why such a new sentence would not also qualify as "a sentence" under rule 3.170(f). Cf. Griffin v. State, 114 So. 3d 890, 898 (Fla. 2013) (noting as dicta that a motion to withdraw plea prior to resentencing "would have been pursuant to rule 3.170(f) rather than rule 3.170(l)"). For each of these reasons, we hold that a defendant whose sentence has been vacated may file a motion to withdraw plea under rule 3.170(f) at any time prior to resentencing. Because the postconviction court therefore erred in denying Scott's motion as untimely, we reverse Scott's new sentences and remand for further proceedings on Scott's motion to withdraw plea. Affirmed in part, reversed in part, and remanded. SILBERMAN and VILLANTI, JJ., Concur. 9 Opinion subject to revision prior to official publication. 10