CHRISTOPHER E. NASH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Nash appeals his aggravated battery conviction and sentence. The court affirms the conviction but remands to correct the written sentencing order to reflect the oral pronouncement of a concurrent five-year prison sentence and a $5,000 fine.
The written sentencing order must be corrected to reflect the oral pronouncement. The fine may be imposed on an indigent defendant as an authorized penalty under Florida law; indigency does not preclude fine imposition, though courts may defer payment under Section 775.083(2).
[1] A written order of judgment and sentence must not vary from its oral pronouncement.
[2] A court may impose a fine as a penalty for a crime, even if the defendant is indigent.
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Join FLexlaw to unlock all legal intelligence“It is settled that a written order of judgment and sentence must not vary from its oral pronouncement.”
Establishes the fundamental rule requiring correction of the written sentencing order to match what was pronounced in open court.
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Join FLexlaw to unlock all legal intelligenceNash was convicted of aggravated battery and sentenced in open court to a five-year prison term to run concurrently with a fifteen-year probation peri…
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HOBSON, Acting Chief Judge.
Christopher Nash appeals his judgment and sentence for aggravated battery. We affirm the conviction but remand for correction of the sentence.
At sentencing in open court, the trial court imposed a five-year term of imprisonment on appellant under section 775.-082(3)(d), Florida Statutes (1981), to run concurrently with a fifteen-year probation period imposed in a prior case. Additionally, it assessed him with a $5,000 fine to be paid to the county’s fine and forfeiture fund. The written sentencing order, however, does not reflect either imposition of the concurrent sentence or assessment of the fine.
It is settled that a written order of judgment and sentence must not vary from its oral pronouncement. See, e.g., Gatti v. State, 324 So. 2d 193 (Fla. 2d DCA 1975). Both parties agree that the written order should be corrected to show that appellant is to serve a concurrent sentence. However, with respect to the $5,000 fine, appellant, who had been adjudicated insolvent prior to trial, argues that the court, by imposing the fine, improperly assessed him with court costs and attorney fees in that proceeds from a county’s fine and forfeiture fund are to be paid for criminal expenses, costs and fees. See § 142.01, Fla.Stat. (1981). He points out that Ivory v. State, 419 So. 2d 695 (Fla. 2d DCA 1982), Engle v. State, 407 So. 2d 641 (Fla. 2d DCA 1981), and Brown v. State, 400 So. 2d 510 (Fla. 2d DCA 1981), stand for the proposition that a court may not assess an indigent with court costs and attorney fees.
We refuse to accept appellant’s roundabout application of Ivory, Engle and Brown to this case. Regardless of the ultimate disbursement of the proceeds of the fine, such fine is expressly authorized under section 775.083(1)(c) as a penalty in addition to the prison term for the crime which he committed. See Silkey v. State, 356 So. 2d 924 (Fla. 2d DCA 1978). Certainly, he must concede that the fact that he is indigent does not preclude imposition of a fine as part of the sentence. Cf. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (“[N]othing ... precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.” 399 U.S. at 243, 90 S.Ct. at 2023). We note that appellant is not without recourse if he is unable to pay the fine promptly. Section 775.083(2) provides that if a defendant is unable to pay such a fine, the court may defer payment until a date certain.
Accordingly, we remand with instructions that the court indicate on the written sentencing order that appellant’s five-year prison sentence is to run concurrently with the fifteen-year probation period imposed in the earlier case1 and that he is to pay the $5,000 fine as part of the sentence.2 In all other respects we affirm.
AFFIRMED and REMANDED with directions.
RYDER and LEHAN, JJ., concur. . The sentencing order refers to the probation term as “Judge Pack’s sentence.” The court on remand should identify such case with greater clarity.
. On remand, the court must also impose a five percent surcharge on the fine. See section 960.25, Florida Statutes (1981).
Cases With Similar Vibessemantic neighbors from the corpus
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Ottney v. State, 571 So. 2d 20 (Fla. 2d DCA 1990)…Wood v. State, 544 So. 2d 1004 (Fla.1989); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984), it may impose a fine on the defendant as part of the defendant’s sentence. § 775.083, Fla.Stat. (1985); Nash v. State, 434 So. 2d 33 (Fla. 2d DCA), review denied, 438 So. 2d 833 (Fla.1983). [*22] We reverse appellant’s judgment and sentence and remand with instructions that an order be entered granting appellant’s motion to suppress and for further proceedings consistent with thi…
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Scurry v. State, 490 So. 2d 223 (Fla. 2d DCA 1986)…ine as part of appellant’s sentence. Section 775.083(l)(c), Florida Statutes (1983), expressly authorizes the court to levy such a fine as a penalty in addition to any prison term a court may impose. See also 960.25, Fla.Stat. (1983). Nash v. State, 434 So. 2d 33, 34 (Fla. 2d DCA), petition for review denied, 438 So. 2d 833 (Fla.1983). However, the trial court did err in imposing restitution under section 775.089, Florida Statutes (1983), without notice and an opportunity to be heard. We recognize that adva…
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Stewart v. State, 522 So. 2d 518 (Fla. 2d DCA 1988)…regarding the fines. Trial courts are specifically authorized to impose fines in addition to any other authorized penalty. § 775.083, Fla.Stat. (1985). The fact that the appellant is indigent does not preclude imposition of the fines, Nash v. State, 434 So. 2d 33 (Fla. 2d DCA), review denied, 438 So. 2d 833 (Fla.1983), but if the appellant is unable to pay them, the trial court may defer payment to a date certain. § 775.083(2), Fla.Stat. (1985). We do find merit in the appellant's contention regarding the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. Illinois, 399 U.S. 235 (U.S. 1970)
- Brown v. State, 400 So. 2d 510 (Fla. 2d DCA 1981)
- Engle v. State, 407 So. 2d 641 (Fla. 2d DCA 1981)
- Gatti v. State, 324 So. 2d 193 (Fla. 2d DCA 1975)
- Ivory v. State, 419 So. 2d 695 (Fla. 2d DCA 1982)
- Silkey v. State, 356 So. 2d 924 (Fla. 2d DCA 1978)