DAVID KENNETH CARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Kenneth Card was convicted of kidnapping, carjacking, attempted sexual battery, and arson after pleading nolo contendere. The court affirmed the convictions for kidnapping and carjacking but reversed and remanded for correction of sentencing errors related to attempted sexual battery and arson, where trial court imposed probation terms that exceeded statutory maximums.
The court affirmed convictions for kidnapping and carjacking but reversed sentences for attempted sexual battery and arson because the imposed split sentences (incarceration plus probation) exceeded statutory maximums. The court also reversed the attempted sexual battery judgment to correct the erroneous language describing the offense as occurring 'with great force.'
[1] A written judgment may be corrected to accurately reflect the oral pronouncement of guilt, particularly when the written judgment erroneously includes language not presen…
[2] A probationary term added to a jail sentence may exceed the statutory maximum penalty for an offense, rendering the sentence illegal.
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“Third degree attempted sexual battery is without use of force. §§ 794.011(5), 777.04(4)(e), Fla. Stat. (1993). However, the written judgment erroneously indicates that third degree attempted sexual battery is 'with great force.'”
Establishes the discrepancy between the trial court's oral pronouncement and the written judgment regarding the nature of the attempted sexual battery conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCard pleaded nolo contendere to kidnapping, carjacking, attempted sexual battery, and arson charges. The trial court orally sentenced him to prison te…
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PER CURIAM.
Appellant was convicted and sentenced as an adult after pleading nolo contendere to kidnapping, carjacking, attempted sexual battery and arson. We find no reversible error as to the kidnapping and carjacking counts, but reverse and remand for correction of the sentences for attempted sexual battery and arson, and for correction of the judgment relating to attempted sexual battery.
The trial court orally pronounced appellant guilty of third degree attempted sexual battery and sentenced him accordingly. Third degree attempted sexual battery is without use of force. §§ 794.011(5), 777.04(4)(e), Fla. Stat. (1993). However, the written judgment erroneously indicates that third degree attempted sexual battery is “with great force.” We reverse and remand to the trial court with instructions to correct the written judgment by eliminating the words “with great force” from the attempted sexual battery conviction. See Monroe v. State, 673 So. 2d 149,150 (Fla. 1st DCA 1996).
The trial court orally ordered appellant to serve fifteen years probation following his release from prison without indicating to which counts the probationary term applied. The written sentences for all counts included fifteen years probation following incarceration but the order of probation was entered only as to the kidnapping and carjacking charges. We reverse the sentences for attempted sexual battery and arson and remand to the trial court with directions to delete the probationary portion of those sentences since the addition of probation to the jail sentences exceeds the statutory maximum penalties for those offenses. The maximum sentence for third degree attempted sexual battery is five years. § 775.082(3)(d), Fla. Stat. (Supp.1994). Appellant’s written split sentence for third degree attempted sexual battery combining five years in prison with fifteen years probation exceeds the statutory maximum and is therefore illegal. See State v. Holmes, 360 So. 2d 380, 383 (Fla.1978). The maximum penalty for second degree arson is fifteen years. § 775.082(3)(c), Fla. Stat. (Supp.1994). Appellant’s arson sentence of ten years imprisonment followed by fifteen years probation also unlawfully exceeds the statutory maximum. See Holmes, 360 So. 2d at 383.
We find no reversible error as to appellant’s other points on appeal.
REVERSED AND REMANDED.
GLICKSTEIN, WARNER and GROSS, JJ., concur.
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Authorities Cited
- State v. Holmes, 360 So. 2d 380 (Fla. 1978)
- Taunton v. Tilton, 673 So. 2d 149 (Fla. 5th DCA 1996)