JOHNNY D. PELFREY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Pelfrey challenged his sentence of life imprisonment for attempted first degree murder following guilty pleas to two armed robberies and attempted murder. The court found the life sentence for attempted murder was illegal as excessive under Florida law, vacated that sentence, and remanded for resentencing while affirming the armed robbery sentences.
The life sentence for attempted first degree murder is illegal because it is excessive under Florida law. The court vacated that sentence and remanded for resentencing. The 15-year sentences for armed robberies were affirmed as within statutory limits.
[1] A formal written judgment is controlling over a discrepancy with statements made in a hearing transcript.
[2] A sentence exceeding statutory limits is illegal and subject to vacation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The lower court order is the recorded judgment and not the hearing transcript.”
Establishes that the formal written judgment controls, not statements made during the sentencing hearing.
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Join FLexlaw to unlock all legal intelligencePelfrey pled guilty pursuant to a plea bargain to two counts of armed robbery and one count of attempted first degree murder. The plea agreement speci…
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SHARP, Judge.
Pursuant to a plea bargain agreement appellant, Pelfrey, pled guilty to two charges of robbery with a firearm and one charge of attempted first degree murder. Pelfrey was sentenced to fifteen (15) years imprisonment for each armed robbery and life imprisonment for the attempted first degree murder. Pelfrey argues that the sentence of life imprisonment for attempted first degree murder is illegal.1 The State agrees but argues that this incorrect sentence is merely the result of a clerical error. According to the plea agreement Pelfrey was to receive fifteen (15) years for one armed robbery, fifteen (15) years for attempted first degree murder and life imprisonment for the second armed robbery. The trial judge accepted this agreement at the hearing, but the recorded judgment sentenced Pelfrey to fifteen (15) years for each armed robbery and life imprisonment for the attempted first degree murder.
The lower court order is the recorded judgment and not the hearing transcript. Watt v. State, 323 So. 2d 621 (Fla. 1st DCA 1975).
The Watt court was faced with a similar situation. It concluded that there was no reason to find the. formal order was in error because of a discrepancy between the order and the statements in the transcript. This situation is distinguishable from cases where the trial judge sentences a defendant contrary to the “plea bargain” and the defendant seeks on appeal to withdraw his plea, or to reinstate the bargained for sentence. The error in this case, if any, was in Pelfrey’s favor, and we cannot direct that a more severe sentence be imposed on remand. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); United States v. Best, 571 F. 2d 484 (9th Cir. 1974); Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979); Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972).
The fifteen (15) year sentences for the armed robberies are within the statutory limits and are affirmed. The sentence for life imprisonment for attempted first degree murder is illegal because it is excessive. We vacate the latter sentence and remand this cause to the trial court for resentencing. Pelfrey raised several other issues in this appeal, but because he pled guilty they are not appropriate for our review. Robinson v. State, 373 So. 2d 898 (Fla. 1979). He shall be without prejudice to raise them by way of collateral attack, if appropriate.
AFFIRMED IN PART, AND REMANDED.
ORFINGER and COWART, JJ., concur. . §§ 782.04(l)(a), 777.04(4)(a), 775.082(3)(b), Fla.Stat. (1979).
SHARP, Judge.
The motions to supplement the record on appeal and for a rehearing having been considered by the court, it is upon consideration,
ORDERED and ADJUDGED that the opinion in this case filed September 9, 1981 is corrected by deleting the last sentence of the first paragraph and substituting the following: The State argues that this incorrect sentence is merely the result of a clerical error. Otherwise, the motions to supplement the record and for a rehearing are denied.1
OPINION CORRECTED; MOTION TO SUPPLEMENT DENIED; REHEARING DENIED.
ORFINGER and COWART, JJ., concur. . Appellee seeks to supplement the record with corrections made by the trial court after the record was transmitted. The appellant, proceeding pro se, has not expressly agreed to the record corrections. The trial court is without jurisdiction to correct the transmitted record. Fla.R.App.P. 9.200(f).
Because public confidence in the fairness of the criminal justice system requires some caution in the exercise of the Scrivener’s Error Rule, in the absence of facially obvious clerical error, we decline the opportunity to exercise our discretion and effectively expand exponentially the Scrivener’s Error Rule by applying it to both the written sentence and the transcript of the oral pronouncement of sentence.
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Lenthius Daryl Thomas v. State, 633 So. 2d 1122 (Fla. 5th DCA 1994)…efendant asserts this cannot be done because he has begun to serve his sentences and such sentences cannot now be increased, citing Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Pilgrim v. State, 516 So. 2d 75 (Fla. 5th DCA 1987); and Pelfrey v. State, 409 So. 2d 486 (Fla. 5th DCA 1981). However, the sentences here will not be increased on remand; instead the trial court will be given an opportunity to correct an obvious clerical error. See Drumwright v. State, 572 So. 2d 1029 (Fla. 5th DCA 1991) (enforcement of…
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Venuti v. State, 437 So. 2d 238 (Fla. 5th DCA 1983)…e. The State concedes that oral pronouncements of sentence generally are controlling in such situations and that apparently a clerical error occurred in the instant case. See Landry v. State, 414 So. 2d 1086 (Fla. 5th DCA 1982) and Pelfrey v. State, 409 So. 2d 486 (Fla. 5th DCA 1982). The appellant’s remaining point on appeal is without merit. The judgment below is affirmed and the cause is remanded for correction of the written sentence. AFFIRMED AND REMANDED. FRANK D. UPCHURCH, Jr. and CO-WART, JJ., c…
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Watson v. State, 633 So. 2d 1171 (Fla. 3d DCA 1994)…pended entry of sentence on counts III and IV which were legal sentences, and because the term of court had expired, the trial court erred in imposing a harsher sentence. See Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984); see also Pelfrey v. State, 409 So. 2d 486 (Fla. 5th DCA 1981). Accordingly, we affirm the sentences imposed on counts I and II, and reverse the sentences imposed on counts III and IV with directions to enter a corrected sentencing order suspending entry of sentence on those counts. Affirm…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- United States v. Benz, 282 U.S. 304 (U.S. 1931)
- Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979)
- United States v. Best, 571 F.2d 484 (9th Cir. 1978)
- Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972)
- Watt v. State, 323 So. 2d 621 (Fla. 1st DCA 1975)