Santana v. State

442 So. 2d 1103, 1983 Fla. App. LEXIS 25369

Opinion

PER CURIAM.

Ruben Santana filed a motion to correct sentence pursuant to Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). The trial court granted the motion and, without the defendant’s being present, resentenced Santana to five years in the state penitentiary, a sentence that was at variance with Santana’s plea agreement. The state candidly and appropriately acknowledges the compound error, see State v. Scott, 439 So.2d 219 (Fla.1983) (defendant has right to be present except in the most exceptional cases); Forbert v. State, 437 So.2d 1079 (Fla.1983) (defendant should be permitted to withdraw a guilty plea if sentence imposed is not contemplated by plea agreement).

Accordingly, in light of the foregoing authorities, we remand to the trial court with directions to vacate the sentence of five years and to resentence the defendant.

Remanded with directions.