DOUGLAS WILLIAMSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed in part and reversed in part the trial court's sentence for driving with an unlawful blood alcohol level causing serious bodily injury and driving while license suspended, finding errors in sentencing terms, probation conditions, and felony classification.
The court held that the trial court erred in imposing sentences exceeding statutory maximums and in deviating from the oral pronouncement of probation conditions in the written order, and that the judgment must be corrected to reflect the proper felony classification.
[1] Sentences imposed in excess of the statutory maximum for a felony are illegal and must be reduced.
[2] A defendant is entitled to adequate notice and an opportunity to be heard before the imposition of costs.
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PER CURIAM.
Appellant/D ef endant/ D ouglas W illiam-son (Williamson) appeals the trial court’s sentence after entering guilty pleas to charges of driving with an unlawful blood alcohol level causing serious bodily injury, driving with an unlawful blood alcohol level causing injury to a person, driving with an unlawful blood alcohol level causing property damage, and driving while license suspended. We affirm Williamson’s second and third points on appeal, but reverse as to Williamson’s first, fourth, fifth, and sixth points on appeal.
Both parties agree that the trial court erred in sentencing Williamson to terms in excess of the maximum legal sentence for the crime of driving with an unlawful blood alcohol level causing serious bodily injury (counts II, IV, and VI of the information). Appellant was sentenced concurrently to 5 years incarceration followed by 3 years probation on counts II and IV, and consecutively to 4 years in prison followed by 3 years probation for count VI. Driving with an unlawful blood alcohol level causing serious bodily injury is a third degree felony punishable by a maximum term of 5 years. Sections 316.193(3)(a), (b), (c)(2) and 775.-082(3)(d), Florida Statutes. Therefore, the sentences for count II and count IV must be reduced to 5 years in prison for each count, to run concurrent, and the sentence for count VI must be reduced to 4 years incarceration and 1 year probation. See Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979). Additionally, Williamson was placed on probation for 1 year on count XXXII for driving while license suspended or revoked, a second-degree misdemeanor with a maximum penalty of 6 months. Section 322.34, Florida Statutes. Therefore, Appellant’s sentence of one year probation for violation of count XXXII should be reduced to six months probation. At the sentencing hearing the court ordered Williamson to attend NA and A A meetings three times a week “until that evaluation is done by the Probation Department,” and to submit to “random urinalysis.” However, special condition 14 of Williamson’s order of probation states that Williamson is to “attend NA meetings 3x week” and special condition 5 states that Williamson must “submit to urinalysis, blood tests, physical searches by or on demand of probation officer.” Both parties agree that when a written order of probation deviates from the oral pronouncement of probation at the sentencing hearing, the oral pronouncement controls. See Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982). Therefore, upon remand, the trial court is instructed to amend the written order of probation to conform to the special conditions of probation originally pronounced in open court.
Both parties further agree that the judgment must be corrected to reflect that Williamson pled guilty to counts II, IV, and VI (driving with unlawful blood alcohol level causing serious bodily injury), a third degree felony, rather than a second-degree felony. Section 316.193(3)(a), (b), (c)(2), Florida Statutes.
Finally, Williamson was ordered in the order of probation to pay $20.00 “victim costs” on all counts, $5.00 “assessment” on all counts, and $20.00 “victim costs” pursuant to section 939.015, Florida Statutes. Williamson claims, and the state agrees that the $20.00 “victim costs” pursuant to section 939.015 were imposed without giving Williamson adequate notice and an opportunity to be heard, and that the remaining costs were never ordered by the trial court at the sentencing hearing. Because a defendant is entitled to adequate notice and an opportunity to be heard prior to the imposition of costs, Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990), we remand for reimposition of costs after Williamson is afforded adequate notice and an opportunity to be heard.
Accordingly, we reverse and remand the instant ease to the trial court to reduce Williamson’s probation on counts II, IV, VI, and XXXII; to correct the order of probation to reflect that Williamson must attend NA and AA meetings only until the drug and alcohol evaluation is done by the Probation Department and that Williamson must only submit to urinalysis; to correct the judgment to reflect that driving with unlawful blood alcohol level causing serious injury is a third degree felony, rather than a second degree felony; and to reimpose costs after Williamson is afforded adequate notice and an opportunity to be heard.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
WALDEN and GUNTHER, JJ., concur. DELL, J., concurs in conclusion only without opinion.
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Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998)…breath and blood testing” which condition was not orally pronounced. Although in the past we have corrected such deviations from the oral pronouncement of sentences, see, e.g., Ramos v. State, 696 So. 2d 461 (Fla. 4th DCA 1997); Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990), we will do so no more. Rule 9.140 provides in pertinent part: (d) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at…
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Aleño Santana Madrigal v. State, 683 So. 2d 1093 (Fla. 4th DCA 1996)…72 months incarceration to be followed by 16 months probation. Absent any other error, this error would require reversal and remand for the trial court to reduce appellant’s sentence on Count III to five years incarceration. See Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990); Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979) (“the sentence is legal so far as it is within the provisions of the statute and only void as to the excess”). However, because Count III was affected by the score-sheet error di…
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Collins v. State, 697 So. 2d 1305 (Fla. 4th DCA 1997)…collaterally attacked his sentence after it had been imposed, the sentence would have been void only as to the portion in excess of the statutory maximum. See, e.g., Madrigal v. State, 683 So. 2d 1093, 1095 (Fla. 4th DCA 1996); Williamson v. State, 569 So. 2d 1368, 1368 (Fla. 4th DCA 1990). A defendant violating probation should not be rewarded for faihng to bring an illegal probationary term to the court’s attention prior to the violation. If this matter had been brought to the court’s attention either on d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daniels v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982)
- Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979)
- Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990)