BILLY JOE BILES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Joe Biles appealed his convictions in a case conducted under Anders v. California, challenging his sentences. The appellate court found no reversible error regarding the convictions but identified critical discrepancies between the trial court's oral pronouncement and written sentencing disposition that made the sentences illegal, requiring remand for resentencing.
The court affirmed the convictions but reversed and remanded the sentences because the written disposition was inconsistent with the oral pronouncement and imposed illegal sentences exceeding the statutory maximum, requiring the trial court to resolve the ambiguity on remand.
[1] A written sentence is legally insufficient if it is inconsistent with the trial court's oral pronouncement.
[2] A written sentence is illegal if it exceeds the statutory maximum for the offense.
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Join FLexlaw to unlock all legal intelligence“While the written sentence is ambiguous, it appears to provide for concurrent probationary split sentences of 59 months prison followed by five years of probation for counts I and II, since the box for concurrent sentences is checked off.”
Court's identification of the ambiguity in the written sentencing disposition
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Join FLexlaw to unlock all legal intelligenceBiles was convicted of two counts, both third-degree felonies with five-year statutory maximums under Florida Statute § 316.193(3). At sentencing, the…
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PER CURIAM.
In this appeal conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), our review of the record has disclosed no reversible error, except with regard to the sentences.
In a footnote, the public defender argues that the trial court’s written sentence constitutes an improper general sentence under Dorfman v. State, 351 So. 2d 954 (Fla.1977). We do not necessarily agree. While the written sentence is ambiguous, it appears to provide for concurrent probationary split sentences of 59 months prison followed by five years of probation for counts I and II, since the box for concurrent sentences is checked off. We note that the better practice would be to have a separate written disposition for each count.
However, we see two problems with the sentences.
First, the written sentence is inconsistent with the trial court’s oral pronouncement. At sentencing, the trial court, after indicating that appellant would receive 59 months prison and five years probation, stated: “Count one will be 59 months followed by probation in count two.” But as indicated above, the court in its written disposition imposed two concurrent probationary split sentences of 59 months prison followed by five years probation for the two counts. While the court clearly intended to impose a guidelines sentence, it is otherwise impossible to determine from the record whether the court intended to impose concurrent probationary split sentences for the two counts or whether it intended to impose in carceration on one count to be followed by probation on the other count.
Second, both, of appellant’s convictions were third-degree felonies with five-year statutory máximums. See § 316.193(3), Fla. Stat. (1996). While the trial court’s oral disposition was for a legal sentence, the written disposition calls for illegal sentences of 59 months prison followed by five years probation for each count.
Accordingly, under these circumstances we remand for resentencing, for the trial court to resolve the discrepancy between the oral pronouncement and the written sentences, while keeping the applicable statutory maximum in mind. See, e.g., Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA), rev. denied, 554 So. 2d 1170 (Fla.1989).
We conclude that Justice v. State, 674 So. 2d 123 (Fla.1996) (when sentence is reversed because trial court failed to orally pronounce certain special conditions of probation that later appeared in written sentence, appellate court must strike unannounced conditions and cannot reimpose them upon resentencing) is distinguishable and does not require a different result as it involved aspects of a sentence that were not orally pronounced at all. See Justice v. State, 658 So. 2d 1028, 1034-1035 (Fla. 5th DCA 1995) (en banc) (Griffin, J., dissenting), quashed, 674 So. 2d 123 (Fla.1996).
AFFIRMED in part; REVERSED and REMANDED in part for resentencing.
COBB, HARRIS and THOMPSON, JJ., concur.
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Cited By
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Medberry v. State, 699 So. 2d 857 (Fla. 5th DCA 1997)…e second degree. The sentences are vacated. Upon resentencing the court, which had entered a single sentencing order imposing concurrent terms of 27 years imprisonment on each count, should enter separate sentences on each count. See Biles v. State, 693 So. 2d 701(Fla. 5th DCA 1997). AFFIRMED IN PART; JUDGMENT REVERSED FOR CORRECTION; SENTENCES VACATED AND CAUSE REMANDED FOR RESENTENCING. DAUKSCH and W. SHARP, JJ., concur. . The state does not address this question in its answer brief but rather argues tha…
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Young v. State, 695 So. 2d 506 (Fla. 5th DCA 1997)…en sentence for possession of the videotape does not, however, comport with the court’s oral pronouncement in that it reflects an additional five year probationary period. Accordingly, we remand for resolution of the discrepancy. See Biles v. State, 693 So. 2d 701 (Fla. 5th DCA 1997). AFFIRMED in part; REVERSED in part; and REMANDED for clarification. W. SHARP and GOSHORN, JJ., concur. . § 794.01 l(a)(b), Fla. Stat. (1993). . § 827.071(5), Fla. Stat. (1995).…
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L.G. v. State, 702 So. 2d 1337 (Fla. 5th DCA 1997)…previously held, such a conflict requires a factual resolution by the trial court, assuming that the record does not clearly indicate the actual sentence intended and the state does not concede that the written sentence is in error. Biles v. State, 693 So. 2d 701 (Fla. 5th DCA 1997); Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA), rev. denied, 554 So. 2d 1170 (Fla.1989).…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA 1989)
- Justice v. State, 658 So. 2d 1028 (Fla. 5th DCA 1995)