LORENZO HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lorenzo Howard was convicted of cocaine sale within 1,000 feet of a school based on a controlled transaction measured by law enforcement. The appellate court affirmed the denial of his motion for judgment of acquittal but reversed in part due to a discrepancy between the oral pronouncement and written judgment regarding multiple counts.
The court affirmed the trial judge's denial of the motion for judgment of acquittal, finding competent evidence that the sale occurred within 1,000 feet of a school. The court reversed the written judgment to the extent it conflicted with the oral pronouncement and remanded for correction to reflect guilty only on Count I.
[1] A trial court must review evidence to determine if competent evidence exists from which a jury could infer guilt to the exclusion of all other inferences, viewing the evi…
[2] The state is not required to rebut conclusively every possible variation of events inferable from the evidence, but only to introduce competent evidence inconsistent with…
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Join FLexlaw to unlock all legal intelligence“It is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state.”
Establishes the standard of review for denial of motion for judgment of acquittal and the deferential standard applied to the state's evidence.
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Join FLexlaw to unlock all legal intelligenceHoward was arrested following a controlled transaction staged and videotaped by the Martin County Sheriff's Office. Officers measured the distance bet…
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PER CURIAM.
Appellant Lorenzo Howard was arrested and charged with sale or delivery of cocaine within 1,000 feet of a school and with possession of cocaine. The arrest was the product of a controlled transaction staged and videotaped by the Martin County Sheriff’s Office. Sheriffs Officers later measured the distance between the point of the transaction and Murray Middle School as being less than 1,000 feet. The officer who made the measurement had not been present during the transaction, but he testified at trial that he based the location of the transaction on his viewing of the videotape of the event, and further testified that he was very familiar with the area in question before the incident. At the close of the state’s case, Howard moved for judgment of acquittal arguing that the state failed to show the sale took place within 1,000 feet of a school. Howard appeals the trial court’s denial of this motion.
In State v. Law, 559 So. 2d 187 (Fla.1989), the Supreme Court of Florida reviewed the denial of a motion for judgment of acquittal as follows:
It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events, [citations omitted]
559 So. 2d at 189. At trial, the state detailed its measuring procedures, presented a chart of the scene, and played the videotape of the transaction. The state presented a straight line measurement of 779 feet, and a measurement detoured by houses and street corners of 988 feet. The evidence in this case, when viewed in a light most favorable to the state, is competent evidence which is inconsistent with the defendant’s position that the sale took place more than 1,000 feet from a school. The court, therefore, correctly allowed this issue to go to the jury.
Frankly, we do not understand the significance of the longer of the two measurements offered by the state. Section 893.13(l)(e), Florida Statutes (1989), effects more severe punishment of drug transactions which occur within 1,000 feet of certain schools as the crow flies, not as the car drives. We construe the legislative intent to measure within a 1,000-foot radius, not by local idiosyncracies of pedestrian or automobile travel.
At sentencing, the trial judge merged Count II, the possession count, into Count I, charging sale within 1,000 feet of a school, and orally pronounced Howard guilty of Count I only. The written judgment, however, finds Howard guilty of both counts. When the written order does not conform to the oral pronouncement of judgment, the latter controls. Kord v. State, 508 So. 2d 758 (Fla. 4th DCA 1987); Kelly v. State, 414 So. 2d 1117, 1118 (Fla. 4th DCA 1982). In light of this inconsistency, we remand to the trial court to correct the written judgment to conform to the oral pronouncement.
AFFIRMED IN PART; REVERSED IN PART.
LETTS, POLEN and FARMER, JJ„ concur.
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Ulano v. Anderson, 626 So. 2d 1112 (Fla. 3d DCA 1993)…rial court expressed to the parties findings different from those memorialized in the final judgment”). See also Mahaffey v. Mahaffey, 614 So. 2d 649, 650-51 (Fla. 2d DCA 1993) (final judgment must be consistent with oral findings); Howard v. State, 591 So. 2d 1067, 1068 (Fla. 4th DCA 1991) (in criminal case, written judgment must conform to oral pronouncement); Powell v. Allstate Ins. Co., 479 So. 2d 149, 150 (Fla. 4th DCA 1985) (error to enter final judgment inconsistent with explicit oral and written findin…
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Luke v. State, 672 So. 2d 654 (Fla. 4th DCA 1996)…days to which Luke is entitled. It has generally been held that when a written order does not conform to the oral pronouncement of judgment and sentence, the latter controls. Trueblood v. State, 635 So. 2d 1024 (Fla. 1st DCA 1994); Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991); Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982). In this case, however, we do not consider the court’s statement that Luke would be entitled to “842 days jail credit” to be part of the court’s oral pronouncement of judgment…
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Rivera v. State, 638 So. 2d 148 (Fla. 4th DCA 1994)…time he spent in prison under the vacated sentences); Craig v. State, 608 So. 2d 589 (Fla. 4th DCA 1992) (defendant was entitled to credit for time served on the original sentence which was vacated by the appellate court). See also Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991) (where written order does not conform to the oral pronouncement of judgment the latter controls). Thus, at bar we reverse and remand for the lower court to correct the written sentence to conform with the court’s oral pronounceme…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ronnie S. LAW, 559 So. 2d 187 (Fla. 1989)
- Daniels v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982)
- Kord v. State, 508 So. 2d 758 (Fla. 4th DCA 1987)