Ganga v. State · No. 5D2024-2695 (Fla. 5th DCA) · Decided October 2, 2026
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A defendant has a right to be present when he is resentenced if the judge has discretion over the new sentence, and his lawyer’s oral waiver of his presence was not enough on this record, the Fifth District Court of Appeal has held. With the State conceding error, the court reversed and remanded for a new resentencing hearing in a Lake County attempted second-degree murder case, and also reversed a $250 fine that was never orally announced.
What Happened
A jury found Jason Ganga guilty of attempted second-degree murder, aggravated battery, and shooting into a vehicle. The court sentenced him to 30 years in prison on counts 1 and 2 with a 25-year minimum mandatory, followed by 5 years of probation, and to 159 months in prison on count 3.
The State then moved under Florida Rule of Criminal Procedure 3.800(b)(1) to correct the sentence so that it did not exceed a total of 30 years. Ganga was not present at the hearing on that motion; his attorney announced that he would waive Ganga’s presence. The court entered an amended sentence of 30 years on counts 1 and 2 with a 25-year minimum mandatory, removed the probation, again imposed 159 months on count 3, and ran all sentences concurrently.
Ganga moved under Rule 3.800(b)(2), arguing that resentencing him in his absence violated his due process rights. The trial court denied the motion, finding his presence was not required because the resentencing was ministerial.
What the Court Held
“The State commendably concedes that reversible error occurred below. We agree,” the court wrote. Under Rule 3.180(a)(9) and the Florida Supreme Court’s decision in Jordan v. State, 143 So. 3d 335 (Fla. 2014), a defendant must be present at sentencing, including resentencing. Resentencing in the defendant’s absence can be harmless when it involves only a ministerial act, but when the judge has discretion as to the new sentence, the defendant’s presence is required.
“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 held. 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.” The court remanded for a new resentencing hearing at which Ganga is entitled to be present.
Separately, the court reversed a $250 fine imposed under section 775.083, Florida Statutes, because the trial court did not orally announce it at either sentencing hearing. Such a fine is discretionary and must be orally announced at sentencing, the court explained. On remand the trial court must also adjust the surcharge tied to that fine. The court affirmed the other costs and fees.
Why It Matters
The decision applies the line between ministerial corrections and discretionary resentencing: where the judge could choose any sentence within a range, the defendant has a right to be there, and a lawyer’s oral waiver, without a record showing the defendant himself knowingly and voluntarily waived that right, did not suffice here. The ruling came on the State’s concession of error.
The Opinion
Download the full opinion (PDF)
| Court | Fifth District Court of Appeal |
| Case No. | 5D2024-2695 |
| Lower Court | Circuit Court, Lake County (Judge Heidi Davis) |
| Opinion by | Judge Wallis (Judges Edwards and Soud concurring) |
| Decided | October 2, 2026 |
| Result | Reversed and remanded with instructions: new resentencing hearing with the defendant present; $250 fine reversed and related surcharge to be adjusted; other costs and fees affirmed |