ELSTON ASHTON NISBETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a written sentencing order must conform to the oral pronouncement, and unannounced probation conditions are improper.
The defendant was convicted of robbery and aggravated assault. The written sentencing order imposed probation on all convictions, contrary to the oral…
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WHATLEY, Judge.
Elston Ashton Nisbett appeals his convictions and sentences for robbery with a firearm, robbery, and aggravated assault with a firearm. We affirm his conviction without discussion; however, we remand for resentencing and strike certain conditions of Nis-bett’s probation.
First, at the sentencing hearing, the trial court orally pronounced that a probationary term is only imposed on the robbery convictions. However, the written sentencing order reflects that probation is imposed on all of Nisbett’s convictions. A written sentencing order must comport with a trial court’s oral pronouncement at sentencing. Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995). Therefore, this case is remanded to conform the written sentencing order to the trial court’s oral pronouncement.
Second, the trial court improperly imposed two special conditions of probation without announcing these conditions at sentencing. This was error. See Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994). We affirm condition four insofar as it prohibits the ownership or possession of a firearm, but strike the portion of condition four which implies that Nisbett’s probation officer may consent to Nisbett’s possession of a firearm. In addition, we strike condition seven relating to excessive use of intoxicants and drugs not prescribed by a physician because it was not pronounced at sentencing.
Accordingly, we affirm the convictions, but strike certain probation conditions imposed by the trial court and remand the case for the trial court to conform the written sen- teneing order to the orally pronounced sentences.
THREADGILL, C.J., and BLUE, J., concur.
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Kirby v. State, 665 So. 2d 299 (Fla. 2d DCA 1995)…or resentencing and strike certain costs. Kirby argues, and the state agrees, that Kirby’s sentence must be vacated and the cause remanded for the trial court to conform the written sentencing order to its oral pronouncement. See Nisbett v. State, 660 So. 2d 813 (Fla. 2d DCA 1995). Further, we strike $2 in court costs imposed pursuant to section 943.25(13), Florida Statutes (1993), because the cost is discretionary, and it was not orally announced at sentencing. We also strike the “cost/fine” of $33 that…
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Reisberg v. State, 863 So. 2d 1272 (Fla. 2d DCA 2004)…to its oral pronouncement at sentencing in that it required Reisberg to pay for his mental health evaluation as a special condition of probation. Accordingly, that requirement must be stricken from the written probation order. See Nisbett v. State, 660 So. 2d 813 (Fla. 2d DCA 1995). We therefore affirm but remand with directions to the trial court to strike that portion of the written probation order that requires Reisberg to pay for his mental health evaluation. Affirmed and remanded with directions. SI…
Authorities Cited
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995)