Mario J. Wilson v. State , 2017 Fla. App. LEXIS 11284 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARIO JEROME WILSON,
Appellant,
v. Case No. 5D16-1760
STATE OF FLORIDA,
Appellee.
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Opinion filed August 4, 2017
3.850 Appeal from the Circuit
Court for Orange County,
Wayne C. Wooten, Judge.
Paula C. Coffman, Orlando, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marjorie Vincent-Tripp,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Appellant challenges the order granting in part and denying in part his Florida Rule
of Criminal Procedure 3.850 motion based upon the allegation that his sentence did not
conform to the plea agreement. The trial court granted relief by amending the sentence
to conform to the plea agreement, but it denied Appellant’s request to allow him to
withdraw his plea based on Echeverria v. State, 949 So. 2d 331 (Fla. 1st DCA 2007).
Citing Pralle v. State, 60 So. 3d 556 (Fla. 5th DCA 2011), Appellant contends that the trial
court was obligated to allow him to withdraw his plea. We disagree. Pralle neither
approved nor disapproved the alternative remedy imposed here of amending the
sentence to conform to the agreement. Consistent with Echeverria, we now conclude that
the trial court was within its discretion to amend the sentence and was not obligated to
permit Appellant to withdraw his plea.
However, based on the State’s proper concession of error, we conclude that
Appellant had the right to be present when the new sentence was imposed. Accordingly,
we reverse in part the order under review and remand this cause with instructions that
the court resentence Appellant while he is present.
AFFIRMED in part, REVERSED in part, and REMANDED.
ORFINGER, TORPY and EISNAUGLE, JJ., concur.
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