MICHAEL HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Hill was convicted of aggravated battery and sentenced to fifteen years in prison. The court affirmed the conviction and primary sentence but reversed the mandatory minimum sentences for firearm use and habitual violent felony offender status because they were imposed in the written sentence but not orally pronounced by the trial court.
The court affirmed Hill's conviction and fifteen-year sentence but reversed both mandatory minimums because they were not orally pronounced. The three-year firearm mandatory minimum was reversed and remanded for deletion by state concession; the ten-year habitual offender mandatory minimum was reversed and remanded for deletion because the written sentence did not conform to the trial court's oral pronouncements and such sentencing is discretionary, not mandatory.
[1] A mandatory minimum sentence for use of a firearm may be improperly imposed if the state concedes error.
[2] A written sentence must conform to the trial court's oral pronouncements regarding mandatory minimums.
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Join FLexlaw to unlock all legal intelligence“As to the imposition of a three year mandatory minimum for use of a firearm, the state concedes this was error. Accordingly, we reverse same and remand with direction to delete it.”
Establishes the reversal of the firearm mandatory minimum based on state concession and the absence of proper jury findings.
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Join FLexlaw to unlock all legal intelligenceHill was convicted of aggravated battery. The trial court sentenced him to 15 years in Florida State Prison as a habitual violent felony offender and …
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PER CURIAM.
We affirm appellant’s conviction for aggravated battery and his sentence of fifteen years. As to the imposition of a three year mandatory minimum for use of a firearm, the state concedes this was error. Accordingly, we reverse same and remand with direction to delete it.
With respect to the ten year mandatory minimum imposed on appellant for being a habitual violent felony offender, the written sentence does not conform to the trial court’s oral pronouncements; therefore, we are compelled to reverse and remand so that the mandatory minimum is deleted.
At oral pronouncement of sentence, the trial court granted the state’s request to sentence appellant as a habitual violent felony offender. When it proceeded to pronounce the sentence, the following transpired:
THE COURT: I sentence you to 15 years in Florida State Prison as a habitual violent fellony [sic] offender with the applicable limit of—
DEFENSE COUNSEL: Judge, we’re going to be objecting to the sentence and also to the mandatory minimum in this case. I believe through inadvertence by the prosecution, they failed to specify on the jury form—
The parties went on to discuss the absence of a special question on the jury form requiring a finding of the use of a firearm. After the trial court made its findings concerning this issue, it proceeded to discuss restitution, and then it denied appellant’s motion for a new trial. Nowhere did it orally pronounce a ten year mandatory minimum for appellant as a habitual violent felony offender. However, the written order of sentence reflects a fifteen year sentence, and under the section entitled “Special Provisions,” the trial court wrote that appellant must serve a minimum of ten years before being released in accordance with the provisions of section 775.084(4), Florida Statutes (1991).
Green v. State, 615 So. 2d 828 (Fla. 4th DCA 1993), is dispositive. In Green, this court affirmed the defendant’s conviction and adjudication as a habitual violent felony offender, but reversed the mandatory minimum provisions in the sentence. This court wrote:
The written sentences each include mandatory minimum terms pursuant to the habitual offender act, section 775.084(4), Florida Statutes (1991). At sentencing, however, the trial court did not orally impose mandatory minimum terms. Because the trial court’s written sentences differ from its oral pronouncements and sentencing under section 775.084(4) is discretionary and does not require the imposition of mandatory minimum terms, we reverse appellant’s sentences.
Id. at 823.
GLICKSTEIN, FARMER and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996)…llant cannot be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Id.; see also Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984); Macias v. State, 572 So. 2d 22 (Fla. 4th DCA 1990). In Hill v. State, 652 So. 2d 904 (Fla. 4th DCA 1995), the trial court failed to orally pronounce a ten-year mandatory minimum sentence for the defendant as an habitual violent felony offender. However, the written order of sentence of the trial court reflected a fifteen-year senten…
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Colon v. State, 869 So. 2d 1290 (Fla. 4th DCA 2004)…as a habitual violent felony offender, which appears in the written sentences. The mandatory minimum is discretionary, not mandatory, see State v. Hudson, 698 So. 2d 831 (Fla. 1997) (not cited), and thus must be orally pronounced. See Hill v. State, 652 So. 2d 904 (Fla. 4th DCA 1995); Green v. State, 615 So. 2d 823 (Fla. 4th DCA 1993). However, the issue was not preserved for appeal, and unpreserved sentencing error cannot be corrected in an Anders case. See Washington v. State, 814 So. 2d 1187 (Fla. 5th DC…
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Moody v. State, 696 So. 2d 797 (Fla. 2d DCA 1997)…1993); Lowe v. State, 605 So. 2d 505 (Fla. 5th DCA), rev. den., 613 So. 2d 6 (Fla.1992). The remaining districts adopt the view that imposition of these minimum terms is permissive. State v. Morales, 678 So. 2d 510 (Fla. 3d DCA 1996); Hill v. State, 652 So. 2d 904 (Fla. 4th DCA 1995). Affirmed. DANAHY, A.C.J., and SCHOONOVER and WHATLEY, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spriggs v. State, 615 So. 2d 828 (Fla. 4th DCA 1993)