The Fifth District Court of Appeal has held that a Lake County defendant had a right to be present at a resentencing in which the judge had discretion over the new sentence, and that his lawyer’s oral waiver of his presence was not enough without a record showing he knowingly and voluntarily waived that right.
Jason Ganga was convicted of attempted second-degree murder, aggravated battery, and shooting into a vehicle and sentenced to 30 years with a 25-year minimum mandatory on counts 1 and 2, followed by probation. On the State’s motion to correct the sentence so it did not exceed a total of 30 years, the court held a hearing without Ganga, whose attorney waived his presence, and entered an amended sentence removing the probation. The court later found Ganga’s presence was not required because the resentencing was ministerial.
The State conceded error, and the Fifth District agreed. “Because the trial court could have imposed any sentence between 25 and 30 years in prison on counts 1 and 2, resentencing was not a ministerial act,” the court wrote, and “nothing in the record established that Appellant knowingly and voluntarily waived his right to be present at resentencing, even though his attorney orally waived his presence at the hearing.” It remanded for a new resentencing hearing at which Ganga is entitled to be present.
The court also reversed a $250 fine under section 775.083, Florida Statutes, because it was never orally announced at either sentencing hearing, and directed the trial court to adjust the related surcharge.
Download the full opinion (PDF)
Citation: Ganga v. State, No. 5D2024-2695 (Fla. 5th DCA Oct. 2, 2026).
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