JESUS CABRERA - TOLEDO
v.
STATE OF FLORIDA
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Jesus Cabrera-Toledo appealed his conviction for battery and attempted unlawful sexual activity. The appellate court affirmed the judgment but reversed and remanded for correction of the written sentence to match the oral pronouncement regarding concurrent sentencing.
Yes, a trial court's written sentence must conform to its oral pronouncement. When the two differ, it constitutes reversible error that requires correction.
[1] A trial court's written sentence must conform to its oral pronouncement of sentence, and any discrepancy between the two constitutes reversible error requiring remand for…
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Join FLexlaw to unlock all legal intelligence“A trial court's written sentence must conform to its oral pronouncement; when the two differ, that constitutes reversible error.”
Establishes the legal principle that discrepancies between oral and written sentences are grounds for reversal.
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial, Cabrera-Toledo was found guilty of battery and attempted unlawful sexual activity. The trial court orally pronounced concurren…
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ATKINSON, Judge. Jesus Cabrera-Toledo appeals his judgment and sentence for battery and attempted unlawful sexual activity.
We affirm the judgment and sentence imposed without comment.
However, because the written sentence differed from the trial court's oral pronouncement of the sentence, we reverse and remand for entry of a corrected written sentence. Following a jury trial, Cabrera-Toledo was found guilty of battery and attempted unlawful sexual activity. At the sentencing hearing, the trial court sentenced Cabrera-Toledo to 364 days in jail for battery and 4 years of imprisonment followed by1 year of sex offender probation for attempted unlawful sexual activity with credit for 611 days of time served.
The trial court stated in its oral pronouncement that the terms of imprisonment for the two counts would be served concurrently. Subsequently, the trial court entered a written judgment and sentence. The written sentence matched the trial court's oral pronouncement except that it did not specify that Cabrera-Toledo's sentences for battery and attempted unlawful sexual activity were to be served concurrently.1 As such, the order of sex filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800.
The trial court did not rule on the motion within sixty days; therefore, the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B). "A trial court's written sentence must conform to its oral pronouncement; when the two differ, that constitutes reversible error." Gay v. State, 193 So. 3d 1069, 1070 (Fla. 2d DCA 2016) (citing Rivera v. State, 34 So. 3d 207, 208 (Fla. 2d DCA 2010)). Because the trial court's oral pronouncement differs from the written sentence as to whether Cabrera-Toledo's sentences run concurrently, we reverse and remand for the trial court to amend the written sentence to conform to its oral pronouncement of the sentence. See id. In all other respects, we affirm.
Affirmed in part, reversed in part, and remanded. SILBERMAN and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. offender probation does not need to be corrected to reflect that the sentences for the battery and unlawful sexual activity charges were to be served concurrently.
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Citator
Cited By
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Reeves v. State (Fla. 2d DCA 2025)
Authorities Cited
- Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010)
- GAY v. State, 193 So. 3d 1069 (Fla. 2d DCA 2016)