SCOTT HEZEKIAH JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Scott Johnson appealed his conviction and sentence for burglary and grand theft, challenging both the amount of jail credit awarded and the constitutionality of the habitual felony offender statute. The court affirmed his sentence but remanded to correct the jail credit calculation to reflect the trial judge's oral pronouncement rather than the erroneous written order.
The court held that Johnson is entitled to jail credit consistent with the trial judge's oral pronouncement rather than the erroneous written order, and that the habitual felony offender statute is constitutional as applied to Johnson because he would have qualified as a habitual felony offender under the substantially similar pre-amendment 1988 version of the statute.
[1] A trial court's oral pronouncement of sentence controls over any subsequent conflicting written order.
[2] A defendant is entitled to jail credit for time served from the date of arrest.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court's verbal pronouncement controls over any subsequent conflicting written order”
Establishes the primary legal principle governing the jail credit dispute
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson pleaded no contest to May 1990 charges of burglary of a dwelling and grand theft. The trial court classified him as a habitual felony offender…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Constitutional Challenge To Statute cases and more on FLexlaw
PER CURIAM.
Appellant pled no contest to the 1990 crimes of burglary of a dwelling and grand theft.
The trial court classified him as a habitual felony offender and sentenced him to two concurrent 10-year terms of imprisonment. The first appeal resulted in our decision vacating the sentence and remanding in Johnson v. State, 597 So. 2d 353 (Fla. 1st DCA 1992), based on grounds not pertinent to this second appeal. At the July 13, 1992, resentencing hearing, the trial judge orally pronounced that Appellant, who had been incarcerated since October 7, 1990, would be entitled to receive credit for the time served since the date of arrest.
However, the re-sentencing form erroneously credited him with only the 41 days between October 7, 1990, and November 16, 1990. Under these circumstances, the trial court’s verbal pronouncement controls over any subsequent conflicting written order. Brown v. State, 596 So. 2d 507, 508 & n. 1 (Fla. 1st DCA 1992). On this first issue, the state concedes that Appellant is entitled to additional jail credit time.
Therefore, we remand the cause with directions for the lower tribunal to correct the amount of jail credit time consistent with the oral pronouncement.
Section 921.161(1), Fla.Stat. (1989); Richards v. State, 521 So. 2d 292, 293 (Fla. 1st DCA 1988) (sentencing court must specify precise amount of time previously served, whether in county jail or state prison).
Appellant’s second issue is a challenge to the constitutionality of the habitual felony offender statute. Appellant commit-' ted the instant offenses in May 1990, when the amended 1989 version of the statute applied. Because the crimes occurred during the “window period” described in Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991), approved, 616 So. 2d 1 (Fla.1993), a constitutional challenge is permitted only if Appellant would not have qualified as a habitual felony offender under the substantially similar pre-amendment (1988) version of the statute. Miffin v. State, 615 So. 2d 745 (Fla. 2d DCA 1993) (affirming enhanced sentence where application of statutory amendments did not appear to prejudice defendant bringing “Johnson” challenge of 1989 statute); Tims v. State, 592 So. 2d 741 (Fla. 1st DCA 1992).
From our review of Appellant’s record and the sentencing transcript, we find that Appellant met all of the prerequisites for habitual felony offender classification under section 775.084(1)(a), Florida Statutes (Supp.1988).
McCall v. State, 616 So. 2d 10 (Fla.1993); Howard v. State, 615 So. 2d 229 (Fla. 1st DCA 1993).
Further, we note that the constitutionality of the 1988 version of section 775.084 has been challenged on identical grounds in numerous prior decisions and has been upheld. See, e.g., Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990), rev. den., 581 So. 2d 166 (Fla.1991); Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990), rev. den., 576 So. 2d 284 (Fla.1991) (due process and equal protection challenges); King v. State, 557 So. 2d 899 (Fla. 5th DCA), rev. den., 564 So. 2d 1086 (Fla.1990); Love v. State, 569 So. 2d 807 (Fla. 1st DCA 1990).
Cf. Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA), rev. den., 576 So. 2d 284 (Fla.1990); Brazil v. State, 604 So. 2d 915 (Fla. 1st DCA 1992) (analysis of constitutional challenges of 1987 and 1989 versions of statute, respectively, on same grounds is equally applicable to challenge of 1988 statute).
We AFFIRM Appellant’s judgment and sentence in all respects other than the direction, on REMAND, to conform the written jail credit time sentencing form to comport with the oral pronouncements of the trial court.
BARFIELD, WOtF and MICKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Justice v. State, 674 So. 2d 123 (Fla. 1996)…sually just a record of the actual sentence required to be pronounced in open court. Vasquez, 663 So. 2d at 1349. Consequently, when the written order conflicts with the oral pronouncement, the oral pronouncement prevails. Id.; see Johnson v. State, 627 So. 2d 114 (Fla. 1st DCA 1993) (holding that trial court’s oral pronouncement that defendant would receive credit for time served since arrest controlled over re-sentencing form which erroneously credited him with only partial time served since arrest); Kelly…
-
Parker v. State, 767 So. 2d 532 (Fla. 5th DCA 2000)…also that Parker has sufficiently alleged that his sentence imposed under the 1995 guidelines could not have been imposed under the 1994 guidelines absent a departure. See Heggs; see also McCall v. State, 616 So. 2d 10 (Fla.1993); Johnson v. State, 627 So. 2d 114 (Fla. 1st DCA 1993). Specifically, he alleges that if he had been sentenced under the 1994 guidelines, he would have been sentenced to a maximum of 54 months. However, under the unconstitutional 1995 law, the range was 66.5 to 110 months and he rece…
-
Edwards v. State, 668 So. 2d 1090 (Fla. 1st DCA 1996)…PER CURIAM. As conceded by the State, the amount of jail credit time on Appellant’s commitment to custody order should conform with the trial court’s oral pronouncement and written judgment. Therefore, we REVERSE and REMAND. See Johnson v. State, 627 So. 2d 114 (Fla. 1st DCA 1993). Appellant need not be present for this correction. BOOTH, BENTON and VAN NORTWICK, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA 1990)
- Arnold v. State, 566 So. 2d 37 (Fla. 2d DCA 1990)
- Pittman v. State, 570 So. 2d 1045 (Fla. 1st DCA 1990)
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- Love v. State, 569 So. 2d 807 (Fla. 1st DCA 1990)
- Tims v. State, 592 So. 2d 741 (Fla. 1st DCA 1992)
- Miffin v. State, 615 So. 2d 745 (Fla. 2d DCA 1993)
- Richards v. State, 521 So. 2d 292 (Fla. 1st DCA 1988)