ROBERT LEE MARSHALL, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the written sentence must be corrected to conform to the oral pronouncement, but affirmed the denial of the motion for judgment of acquittal.
[1] A variance between the proof and the information as to the identity of a motor vehicle does not warrant a judgment of acquittal if the variance does not mislead or prejud…
[2] An oral pronouncement of sentence prevails over a written judgment and sentence form.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of carjacking and appealed, raising issues regarding a variance in the vehicle description and an inconsistency between th…
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WOLF, Judge.
Appellant raises two issues on appeal: (1) Whether the trial court erred in denying appellant’s motion for judgment of acquittal due to a variance between the proof and information as to the identity of the motor vehicle allegedly car jacked, and (2) whether the appellant’s sentence must be remanded for correction to conform to the trial court’s oral pronouncement. We find no merit as to the first issue, and affirm without further discussion. We must vacate the sentence, however, because of an inconsistency between the oral pronouncement and written sentence.
In the oral pronouncement of sentence, the judge made the following statement: “[H]e has a 4½ year’s suspended sentence, 18 months community control and 11 months and 15 days county jail and 5. years’ probation, first 6 months of his community control of CC-2.” The defendant was given credit for 191 days served. As written, the 4½ year suspended sentence reads as follows: “[Y]ou are placed on 18 months community control under the supervision of the Florida Parole Commission subject to all the terms and conditions contained in your Order of Community Control, with the first 6 months on Community Control II, followed by 5 years probation on conditions serve 11 months 15 days County Jail with credit for 191 days.”
It appears that the intent at oral pronouncement was for the appellant to serve 11 months 15 days in county jail, with credit for 191 days served, prior to his beginning to serve 18 months’ community control, which is to be followed by 5 years’ probation. The sentence as written, however, seems to require the 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 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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Martindale v. State, 678 So. 2d 883 (Fla. 4th DCA 1996)…ten sentence correctly sets forth the amount of time actually served. Id. However, where the intent of the oral pronouncement is not reflected in the written sentence, remand for correction of the written sentence is mandated. See Marshall v. State, 652 So. 2d 974 (Fla. 1st DCA 1995). In this case, we cannot tell from the record before us whether there are inconsistencies between the oral pronouncements and the written sentences. If the amount of time actually served plus unforfeited gain time in Case Nos.…
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Hall v. State, 853 So. 2d 546 (Fla. 1st DCA 2003)…URDER CASE WHERE THE DEATH PENALTY MAY NOT BE IMPOSED AS A MATTER OF LAW. As to Issue 2, the state correctly concedes that the trial court’s oral pronouncement of sentence prevails over the written judgment and sentence form. See Marshall v. State, 652 So. 2d 974 (Fla. 1st DCA 1995). Immediately following appellant’s retrial, the trial court orally pronounced sentence as “life with no possibility of parole for a minimum of 25 years.” The trial court’s written sentence form indicated that no less than 25 year…
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Pleas v. State, 842 So. 2d 969 (Fla. 1st DCA 2003)…J. We affirm the Appellant’s convictions and sentences. However, we remand for correction of the written judgment and sentence in lower court case number 98-3154 to conform with the oral pronouncement of the sentence. See, e.g., Marshall v. State, 652 So. 2d 974 (Fla. 1st DCA 1995). Specifically, we note that the written judgment and sentence must make reference to the fact that, on count two of that case, Appellant was sentenced as a prison releasee reoffender. AFFIRMED and REMANDED for correction of wri…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Armstead v. State, 612 So. 2d 623 (Fla. 1st DCA 1993)
- Brown v. State, 599 So. 2d 225 (Fla. 1st DCA 1992)