Poma v. State

Third District Court of Appeal
State of Florida
Opinion filed May 2, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-737
Lower Tribunal No. 02-15560-B
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Diviel Poma,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Stephen T. Millan, Judge.
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.
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