Poma v. State, 3D17–737

• Decision Date: 02 May 2018
• Docket Number: No. 3D17–737,3D17–737
• Citation: 245 So.3d 977 (Mem)
• Parties: Diviel POMA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

245 So.3d 977 (Mem)

Diviel POMA, Appellant,

v.The STATE of Florida, Appellee.

No. 3D17–737

District Court of Appeal of Florida, Third District.

Opinion filed May 2, 2018

Dan Hallenberg (Fort Lauderdale), for appellant.

Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.

Before EMAS, FERNANDEZ and LUCK, JJ.

PER CURIAM.

Diviel Poma, the defendant, appeals the trial court's denial of the defendant's 3.800(a) motion to correct illegal sentence. The defendant argues several points, one of which was the failure of the trial court to have the defendant present for resentencing after it vacated two of the five counts upon which the defendant had been previously sentenced. The trial court determined that resentencing with the defendant present was not necessary because it was simply vacating the sentences on two of his counts. However, because the sentences imposed on the remaining counts were discretionary, the trial court was required to have the defendant present for resentencing with a corrected scoresheet. See Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) ; Fernandez v. State, 199 So.3d 500 (Fla. 2d DCA 2016) ; Brown v. State, 219 So.3d 866 (Fla. 4th DCA 2017). On remand, the trial court is free to impose the same sentence or any legal sentence. See State v. Davis, 133 So.3d 1101, 1107 n.9 (Fla. 3d DCA 2014) (Emas, J.) ("At the new sentencing proceeding, the trial court is free to impose the same sentences it previously imposed on counts three and four."); Sconiers v. State, 734 So.2d 427, 428 (Fla. 3d DCA 1999) ("On remand, the trial court is free to impose the same sentence."). We affirm in all other respects.

Affirmed in part, reversed in part, and remanded for resentencing with the defendant present before the trial court.