KEVIN SMITH
v.
STATE OF FLORIDA
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Kevin Smith appealed his sentence arguing that the trial court's written sentencing order conflicted with the oral pronouncement at sentencing. The court agreed and remanded for correction of the written order to conform to the oral pronouncement.
The court held that where a trial court's written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls. The circuit court must correct Smith's sentence to remove the violent career criminal status on counts I through V and to conform the sentences on counts III through V to the oral pronouncement of 15 years and one day as a habitual felony offender.
[1] A scrivener's error in a written sentence may be corrected to conform to the oral pronouncement of the sentence.
[2] A prison releasee reoffender designation may not be applied to counts for which it was not orally imposed.
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Join FLexlaw to unlock all legal intelligence“Where a trial court's written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls.”
Establishes the governing legal principle that the oral pronouncement controls when there is a conflict with the written sentencing order.
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Join FLexlaw to unlock all legal intelligenceKevin Smith was sentenced by the trial court. The court made an oral pronouncement of sentence at the sentencing hearing. The trial court subsequently…
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KUNTZ, J.
Kevin Smith raises four issues on appeal. We affirm three without comment. For the fourth issue, Smith argues the court’s written sentence did not conform to the court’s oral pronouncement at the sentencing hearing. We agree.
“Where a trial court’s written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls.” Thomas v. State, 183 So. 3d 479, 480 (Fla. 4th DCA 2016) (quoting Santiago v. State, 133 So. 3d 1159, 1167 (Fla. 4th DCA 2014)).
The court’s written sentence designated Smith a violent career criminal on counts I through V. But the court’s oral pronouncement of Smith’s sentence did not. As a result, the circuit court must correct Smith’s sentence to remove the violent career criminal status.
On counts III through V, all second-degree felonies, the court orally pronounced 30 years as a prison releasee reoffender and 15 years plus one
day as a habitual felony offender. In contrast, the written order on these counts reflects 30-year sentences, designations as a habitual felony offender as stated on the record, and designations as a prison releasee reoffender with mandatory minimum of 15 years. Again, the written sentence conflicts with the court’s oral pronouncement.
The maximum sentence for a second-degree felony with a habitual felony offender designation is 30 years, § 775.084(4)(a)2., Fla. Stat. (2019), and the maximum with a prison releasee reoffender designation is 15 years, § 775.082(9)(a)3.c., Fla. Stat. (2019). The court orally sentenced Smith to 15 years and one day as a habitual felony offender. Smith’s sentence on those counts cannot exceed that oral pronouncement.
We affirm but remand for correction of the written order to conform to the oral pronouncement as stated above.
Affirmed and remanded.
LEVINE, C.J., and SHEPHERD, CAROLINE, Associate Judge, concur.