DAVID LEE ARMSTEAD, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Lee Armstead appeals a sentencing imposed on May 12, 1992, after the trial court had filed a written judgment on May 5, 1992, contending he was improperly resentenced to a longer term. The court affirmed, holding that oral pronouncement of sentence controls over written judgments, and because no sentence was orally pronounced on May 5, the May 12 sentencing was proper.
The court held that the trial court did not err because sentence was never orally pronounced on May 5, 1992. Oral pronouncement of sentence prevails over written judgments, and the May 5 written judgment was an inadvertent clerical error. Therefore, the May 12 sentencing was the valid pronouncement of sentence.
[1] The oral pronouncement of sentence prevails over a written judgment and sentence form.
[2] A written judgment and sentence document that is not orally pronounced in open court may be treated as a clerical error.
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Join FLexlaw to unlock all legal intelligence“oral pronouncement of sentence prevails over the written judgment and sentence form”
Establishes the controlling legal principle that oral pronouncements in open court take precedence over written sentencing documents.
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Join FLexlaw to unlock all legal intelligenceArmstead was charged with possession of cocaine, drug paraphernalia possession, and driving with a suspended license in January 1989. He pleaded nolo …
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JOANOS, Chief Judge.
Appellant, David Lee Armstead, Jr., appeals the judgment and sentence imposed after the revocation of his community control for the offense of possession of cocaine. Appellant contends the trial court erred in resentencing him on May 12, 1992, after imposing a legal sentence on May 5, 1992. We do not agree that appellant was re-sentenced, and affirm the May 12, 1992, sentence.
On January 15, 1989, appellant was charged with possession of cocaine, possession of drug paraphernalia, and driving with a suspended license.
In June 1989, pursuant to a plea agreement for a guidelines sentence, appellant pled nolo conten-dere to all charges. At sentencing on August 22, 1989, appellant was adjudicated guilty, and was placed on probation for five years on the possession of cocaine conviction, one year on the paraphernalia conviction, and six months on the driving with suspended license conviction, the terms of probation to run consecutively to each other.
In November 1991, appellant pled nolo contendere to violation of probation, his probation was revoked, and appellant was sentenced to two years of community control on the cocaine conviction, and to time served on the other convictions.
On May 5, 1992, appellant pled nolo con-tendere to four violations of community control. Sentencing on the community control violation was set for May 12, 1992. However, a written judgment dated and filed May 5, 1992, purported to place appellant on community control for two years. At the May 12, 1992, sentencing proceeding, the trial court “bumped” the guidelines sentencing range by two cells, based upon the prior violations of probation and community control, respectively. The trial court then orally pronounced sentence of 4V2 years, with credit for 469 days served. The transcript of the sentencing proceeding is silent with regard to the judgment and sentence document dated May 5, 1992.
Florida Rule of Criminal Procedure 3.700(b) provides that “[ejvery sentence or other final disposition of the case shall be pronounced in open court.” In this vein, it is a settled rule of law that oral pronouncement of sentence prevails over the written judgment and sentence form. Kennedy v. State, 564 So. 2d 1127, 1131 (Fla. 1st DCA 1990); Jeffrey v. State, 456 So. 2d 1307 (Fla. 1st DCA 1984). Another general rule of law is that once a person has begun serving a lawful sentence, he may not be resentenced subsequently to an increased term of incarceration. Donald v. State, 562 So. 2d 792, 794 (Fla. 1st DCA 1990), review denied, 576 So. 2d 291 (Fla.1991).
Appellant takes the position that the written judgment and sentence dated May 5, 1992, was lawful, and precluded the trial court from imposing a longer sentence on May 12, 1992. We cannot agree. Sentence was not orally pronounced on May 5, 1992.
Moreover, the record reflects that at the May 12, 1992, sentencing, appellant and his counsel both urged the trial court to reinstate community control and to place appellant in a drug treatment program. Notably, no argument was advanced that the trial court already had imposed a community control sentence, or that the two-cell increase for sentencing purposes was improper, because a lawful sentence had been imposed on May 5, 1992. Appellant’s silence on this point at the hearing seemingly was a tacit recognition that the pronouncement of sentence on May 12, 1992, was proper. Since the record is clear that sentence was not pronounced on May 5, 1992, it is reasonable to conclude that the written judgment and sentence of that date was inadvertent, and should be treated as clerical error.
Accordingly, the judgment and sentence of May 12, 1992, is affirmed, and the cause is remanded for correction of the document dated May 5, 1992.
WIGGINTON and WOLF, JJ., concur.
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Trueblood v. State, 635 So. 2d 1024 (Fla. 1st DCA 1994)…that the resentencing order does not comport with the trial court’s oral pronouncement at the sentencing hearing. It is well-settled that the oral pronouncement of a sentence prevails over the written judgment and sentence form. Arm-stead v. State, 612 So. 2d 623, 624 (Fla. 1st DCA 1993), citing Kennedy v. State, 564 So. 2d 1127 (Fla. 1st DCA 1990); Jeffrey v. State, 456 So. 2d 1307 (Fla. 1st DCA 1984). We reverse this portion of the trial court’s order and direct the court to correct the order on remand. A…
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Marshall v. State, 652 So. 2d 974 (Fla. 1st DCA 1995)…e appellant to serve the 18 months’ community control prior to his serving the county jail time. This court has held that the oral pronouncement of sentence prevails over the [*975] written judgment and sentence form. See, e.g., Armstead v. State, 612 So. 2d 623 (Fla. 1st DCA 1993). The written sentence must be remanded for correction to conform to the trial judge’s oral pronouncement. See Brown v. State, 599 So. 2d 225 (Fla. 1st DCA 1992). ERVIN and MINER, JJ., concur.…
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Verble v. State, 636 So. 2d 890 (Fla. 1st DCA 1994)…specifying the offense to which the sentence applied.1 While the written judgment and sentence purport to impose a sentence for each offense, the oral pronouncement of sentence prevails over the written judgment and sentence form. Armstead v. State, 612 So. 2d 623, 624 (Fla. 1st DCA 1993). Further, the written sentences are ambiguous as to the counts to which they pertain, that is, one specifies “Count 00 — ,” and the other “Count 002” (which the state dismissed as part of Verble’s plea bargain). Finally, the…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vermon T. Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990)
- Kennedy v. State, 564 So. 2d 1127 (Fla. 1st DCA 1990)
- Archibald Scott Jeffrey v. State, 456 So. 2d 1307 (Fla. 1st DCA 1984)