LUC TERMITUS, JR.

v.

STATE OF FLORIDA

HARRIS, J.

Appellant, Luc Termitus, Jr. appeals the summary denial of his pro se motion to correct illegal sentence. Because we agree that Appellant is entitled to be resentenced with a corrected scoresheet, we reverse.

Appellant was originally charged with one count of first-degree murder with a firearm (count one); two counts of attempted robbery with a firearm (counts two and three); one count of fleeing and attempting to elude with wanton disregard for safety (count four); and one count of grand theft of a motor vehicle (count five). Following a jury trial, Appellant was convicted as charged. In rendering the verdicts, the jury made a special finding that Appellant actually possessed and discharged a firearm, and as to counts one and three, that discharge resulted in the death of the victim. Appellant was sentenced to three terms of life imprisonment with a three-year minimum mandatory for counts one, two, and three, to a fifteen-year term of imprisonment for count four, and to a five-year term of imprisonment for count five. His sentences were affirmed on direct appeal. See Termitus v. State, 19 So. 3d 329 (Fla. 5th DCA 2009).

Appellant subsequently filed a motion to correct illegal sentence, alleging that the life sentences he received for attempted armed robbery with a firearm on counts two and three were illegal, mainly because they exceed the statutory maximum. This Court agreed, vacated Appellant’s sentences and remanded for resentencing on those counts.

See Termitus v. State, 86 So. 3d 1179, 1180 (Fla. 5th DCA 2012). Upon remand, the court resentenced Appellant to a twenty-year minimum mandatory sentence for count two, and to a term of life imprisonment for count three.

Appellant then initiated an action for federal habeas corpus relief in the U.S. District Court. One issue raised in his federal petition was that his two attempted robbery convictions violate the Double Jeopardy Clause. After reviewing the testimony presented at Appellant’s trial, the district court found that during the robbery, Appellant only committed one attempt to forcefully take money from the bank vault. As a result, the district court agreed with Appellant that his two convictions for attempted robbery violate double jeopardy and concluded that he was entitled to have one of his attempted robbery 2 convictions vacated. In compliance with the federal district court’s ruling, the trial court vacated Appellant’s sentence on count two.

Appellant then filed a Florida Rule of Criminal Procedure 3.800(a) motion in the circuit court, arguing that his right to due process was violated when he was not resentenced with a corrected scoresheet after the court vacated his conviction and sentence on count two. The circuit court rendered an order denying Appellant’s motion, holding that any scoresheet error was harmless because the court could have imposed the same sentence under a correct scoresheet.

In support of its decision to deny relief, the circuit court relied on Brooks v. State, 969 So. 2d 238, 243 (Fla. 2007). The court’s reliance on Brooks is misplaced, as that case involved the standard to be applied to scoresheet errors, rather than the standard to be applied when dealing with a vacated conviction. In general, where a conviction is vacated due to a double jeopardy violation, that defendant should be properly sentenced under a scoresheet that does not include points for that vacated conviction. See Fernandez v. State, 199 So. 3d 500, 502 (Fla. 2d DCA 2016) (holding that when postconviction court vacated defendant’s burglary conviction, defendant had absolute right to be resentenced under correct scoresheet that utilized only his actual convictions).

Moreover, the error is not harmless if the trial court had discretion when imposing sentences on the remaining counts and sentenced the defendant in his absence using an incorrect scoresheet. See Poma v. State, 245 So. 3d 977, 978 (Fla. 3d DCA 2018).

In this case, the court had discretion when resentencing Appellant for counts one, three, four, and five. Therefore, the court was required to have Appellant present for resentencing with a corrected scoresheet once it vacated his conviction and sentence for 3 count two. Accordingly, we reverse and remand for resentencing with Appellant present before the court. On remand, the court may impose any legal sentence.

It should be noted that this Court’s records reflect that Appellant’s current sentence on count one (life with a three-year minimum mandatory) is illegal. In this case, because the jury made the required special findings as to count one that Appellant possessed and discharged a firearm that resulted in the death of the victim, the trial court was required to impose a minimum mandatory sentence ranging from twenty-five years to life. § 775.087(2)(a)3, Fla. Stat. (2004). However, at Appellant’s original sentencing, the trial court imposed a sentence of life with only a three-year minimum mandatory as to count one. See e.g., Allen v. State, 853 So. 2d 533, 534 (Fla. 5th DCA 2003) (affirming trial court’s modification of sentence from three-year minimum mandatory sentence to tenyear minimum mandatory sentence where sentencing statute required imposition of tenyear minimum mandatory sentence, and therefore, three-year minimum mandatory sentence was illegal); State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008) (recognizing that three-year minimum mandatory imposed on kidnapping charge was illegal, as trial court was required to impose ten-year minimum mandatory); State v. Strazdins, 890 So. 2d 334, 335 (Fla. 2d DCA 2004) (“When a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence.”). The imposition of a mandatory minimum sentence pursuant to section 775.087(2), Florida Statutes, is nondiscretionary where the record reflects that the defendant qualifies for mandatory minimum sentencing. See Dunbar v. State, 89 So. 3d 901, 906 n.5 (Fla. 2012). Therefore, 4 upon remand for resentencing the circuit court must impose the required minimum mandatory as to count one.

REVERSED and REMANDED EVANDER, C.J. and LAMBERT, J., concur. 5