JOHN FREDERICK KITCHEN
v.
STATE OF FLORIDA
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Kitchen appeals the denial of his Rule 3.800(a) motion to correct an illegal sentence imposed in 2014. The appellate court affirmed that the sentence was legal but remanded for correction of the written sentencing order to accurately reflect the oral pronouncement distinguishing between the habitual violent felony offender (HVFO) and prison releasee reoffender (PRR) sentences.
The sentence is legal because the HVFO sentence of 76.2 months is longer than the five-year PRR minimum mandatory sentence. However, the written sentencing order must be corrected to clearly reflect the oral pronouncement distinguishing between the two sentences.
[1] A trial court may impose a greater sentence of incarceration under the habitual felony offender statute than required by the prison releasee reoffender statute.
[2] A sentence imposed under the habitual felony offender statute cannot be less than or equal to a sentence required under the prison releasee reoffender statute.
Previewing 2 of 3 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“Because the HVFO sentence of 76.2 months is longer than the five-year PRR minimum mandatory sentence, Appellant cannot show that his present sentence as both a PRR and HVFO is illegal.”
Establishes that the sentence is legal because the HVFO sentence exceeds the PRR minimum mandatory sentence
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Join FLexlaw to unlock all legal intelligenceIn 2014, Kitchen was sentenced as both a habitual violent felony offender (HVFO) and a prison releasee reoffender (PRR). The trial court imposed a sen…
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PER CURIAM.
Appellant, John Frederick Kitchen, appeals the postconviction court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Concluding that Appellant’s sentence is legal, we affirm.
In 2014, the trial court sentenced Appellant as both a habitual violent felony offender (HVFO) and as a prison releasee reoffender (PRR). In his rule 3.800(a) motion, Appellant claims that the trial court imposed equal terms of incarceration for each designation in violation of section 775.082(9)(c) of Florida’s Prison Release Reoffender Statute. The transcript from Appellant’s sentencing, however, refutes his claim and clearly shows that Appellant was sentenced as an HVFO to 76.2 months in prison subject to the five-year minimum mandatory sentence and to the five-year PRR minimum mandatory sentence. Because the HVFO sentence of 76.2 months is longer than the five-year PRR minimum mandatory sentence, Appellant cannot show that his present sentence as both a PRR and HVFO is illegal.
The trial court’s written sentencing order, however, is not as clear as the court’s oral pronouncement. Therefore, we remand for correction of the written sentence so that it reflects the oral pronouncement and clearly distinguishes between the HVFO sentence of 76.2 months and the PRR sentence of five years. See, e.g., Webb v. State, 302 So. 3d 1077, 1079 (Fla. 5th DCA 2020) (“When there is a conflict between the oral pronouncement and the written sentence, the oral pronouncement controls.”); see also Simmons v. State, 286 So. 3d 877 (Fla. 5th DCA 2019) (affirming defendant’s 2 convictions and sentences but remanding for correction of clerical error in written judgment).
AFFIRMED and REMANDED for entry of a corrected order that comports with the trial court's oral pronouncement.
LAMBERT, C.J., EDWARDS and NARDELLA, JJ., concur. 3
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Kitchen v. State, 302 So. 3d 1077 (Fla. 5th DCA 2022)…al pronouncement. Therefore, we remand for correction of the written sentence so that it reflects the oral pronouncement and clearly distinguishes between the HVFO sentence of 76.2 months and the PRR sentence of five years. See, e.g., Webb v. State, 302 So. 3d 1077, 1079 (Fla. 5th DCA 2020) (“When there is a conflict between the oral pronouncement and the written sentence, the oral pronouncement controls.”); see also Simmons v. State, 286 So. 3d 877 (Fla. 5th DCA 2019) (affirming defendant’s 2 convictions and…
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KEY v. State (Fla. 5th DCA 2023)…and 3—but only as to those counts—because they were second- degree felonies. See § 775.084(4)(d)2., Fla. Stat. Because the written judgment and sentence deviated from the oral pronouncement, it resulted in an illegal sentence. See Webb v. State, 302 So. 3d 1077, 1079 (Fla. 5th DCA 2020) (“When there is a conflict between the oral pronouncement and the written sentence, the oral pronouncement controls.”); Rodriguez v. State, 223 So. 3d 1053, 1054 (Fla. 2d DCA 2017) (“[T]he oral pronouncement controls and co…
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Slanker v. State (Fla. 5th DCA 2021)…en cost of incarceration. As we have previously held, “[a] motion filed pursuant to [Florida Rule of Criminal Procedure] 3.800(a) is the proper vehicle to address a discrepancy between the oral pronouncement and the written sentence.” Webb v. State, 302 So. 3d 1077, 1079 (Fla. 5th DCA 2020) (citing Mallon v. State, 939 So. 2d 198, 199 n.1 (Fla. 5th DCA 2006); Harris v. State, 160 So. 3d 523, 523 (Fla. 5th DCA 2015)). Slanker may file a Rule 4 3.800(a) motion to address the discrepancy in the oral and written…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- R.J. Reynolds Tobacco Co. v. Margaret Brown for the Estate of Arthur Brown, 286 So. 3d 877 (Fla. 5th DCA 2019)
- Kitchen v. State, 302 So. 3d 1077 (Fla. 5th DCA 2022)