ERNEST FRANKLIN NOBLES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernest Nobles, Jr. was convicted of six counts of lewd acts on a child across two separate informations. The appellate court affirmed the convictions but remanded for clarification of the sentences due to ambiguity in how multiple concurrent and consecutive terms were to run.
The court affirmed the convictions but remanded for clarification because the oral pronouncement of the sentences was ambiguous and could be interpreted as imposing simultaneous terms of imprisonment and probation, which would constitute reversible error.
[1] An oral pronouncement of a sentence is ambiguous when its meaning cannot be clearly ascertained.
[2] A written judgment and sentence must conform to the trial court's oral pronouncement.
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Join FLexlaw to unlock all legal intelligence“We conclude that the oral pronouncement by the trial court of these sentences was ambiguous.”
The court's principal finding that the sentencing was unclear and required remand.
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Join FLexlaw to unlock all legal intelligenceNobles was charged in two separate informations: one listing one child as victim in four counts and another listing a different child as victim in two…
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PARKER, Acting Chief Judge.
Ernest Nobles, Jr., appeals his judgments and sentences for six counts of a lewd act on a child, which were charged in two informations. One information listed one child as a victim in four charges and the second information listed another child as a victim in two charges, trial court case numbers CF90-1157 and CF90-1158, respectively. We affirm the convictions but remand the sentences for clarification by the trial court.
During the sentencing hearing, the trial court stated:
Mr. Nobles, in case number CF90-1157, Count One, you’re adjudged guilty and you’re sentenced to nine years Florida State Prison.
On all of the others you are adjudged guilty and you’re sentenced to ten years probation, concurrent. Total of ten years probation.
In the first case, the written judgment and sentence reflects that the trial court sentenced Nobles to nine years’ incarceration as to count one and to ten years’ probation on counts two, three, and four to run “concurrent but consecutive to et I.” The written judgment and sentence in the second case, case number CF90-1158, reflects that the trial court placed Nobles on ten years’ probation on counts one and two concurrent with each other and concurrent with case number CF90-1157.
We conclude that the oral pronouncement by the trial court of these sentences was ambiguous. If we were to conclude that the written judgment and sentence in case number CF90-1157 conforms to the trial court’s oral pronouncement, we are unclear as to how to interpret the written sentence in case number CF90-1158 which simply states that the two probationary terms run concurrently with the sentences in case number CF90-1157. Probably the trial court planned that the probationary terms in case number CF90-1158 would run concurrently with the probationary terms in case number CF90-1157 and consecutive to the prison term in case number CF90-1157. However, neither the written sentences nor the oral pronouncement of the sentences make that clear. It could be argued that the trial court intended that the probationary sentences in case number CF90-1158 would be served concurrently with both the terms of probation and term of prison in case number CF90-1157. That would create reversible error to impose simultaneous terms of imprisonment and probation. See Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985).
Since we have concluded that the oral pronouncement of the sentences was ambiguous, we remand this case to the trial court for clarification of these sentences. See Head v. State,, 604 So. 2d 881 (Fla. 2d DCA 1992).
PATTERSON and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005)…MANDED. SAWAYA, C.J. and PETERSON, J., concur. . In some instances an ambiguous oral pronouncement of a sentence may be revisited in order to make the sentence clear. See, e.g., Jackson v. State, 615 So. 2d 850 (Fla. 2d DCA 1993); Nobles v. State, 605 So. 2d 996 (Fla. 2d DCA 1992).…
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Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)…t to his position since he, after all, did not receive a Tripp sentence. Nonetheless, a long line of cases from this court directly on point holds that it is reversible error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So. 2d 996. (Fla. 2d DCA 1992); Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So. 2d 554 (Fla.1968). The rationale in these cases stems from “the impossibility of complying with probation…
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Hill v. State, 624 So. 2d 417 (Fla. 2d DCA 1993)…obation. Hill was also sentenced in case number 91-577 to eight years probation, apparently to run concurrent with the sentence in case number 91-576. Because probationary and inearcerative sentences cannot be served simultaneously, Nobles v. State, 605 So. 2d 996 (Fla. 2d DCA 1992), we reverse and remand the sentence for correction. We note also that Hill has contested the trial court’s oral pronouncement that he pay certain costs, contending that they were ordered without notice. A defendant must be given…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)
- Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985)
- Head v. State, 604 So. 2d 881 (Fla. 2d DCA 1992)