FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Tom Young,
Termitus, Jr., Jasper, pro se.
Moody, Attorney General, Tallahassee, and Allison L. Morris,
Assistant Attorney General, Daytona Beach, for Appellee.
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.
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).
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.
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 convictions vacated. In compliance with the
federal district court's ruling, the trial court vacated
Appellant's sentence on count two.
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
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
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 count two. Accordingly, we reverse and remand
for resentencing with Appellant present before the court. On
remand, the court may impose any legal sentence.
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 ten-year
minimum mandatory sentence where sentencing statute required
imposition of ten-year 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