DESMOND R. GILLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Gillen appealed his sentence, arguing that the written sentence failed to reflect jail credit that the trial judge orally pronounced at sentencing. The court held that where a written sentence does not conform to the court's oral pronouncement, the oral pronouncement prevails, and reversed and remanded for correction.
Where a written sentence does not conform to the court's oral pronouncement of judgment and sentence, the oral pronouncement prevails. The court must remand for correction of the written sentence to reflect the trial court's intent as expressed in its oral pronouncement.
[1] A trial court must enter a written sentencing order that conforms to its oral pronouncement of sentence.
[2] A trial court cannot alter a sentence after the defendant has begun serving it, absent specific legal justification.
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“Where the written sentence does not conform to the court's oral pronouncement of judgment and sentence, the latter prevails.”
Establishes the primary legal rule that oral pronouncements control over written sentences when they conflict.
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Join FLexlaw to unlock all legal intelligenceAt sentencing, the trial judge orally announced that defendant would receive jail credit for 233 days based on credit he had previously received in a …
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PER CURIAM.
Defendant argues that the written sentence is not correct in that it does not reflect the amount of jail credit orally pronounced at the sentencing hearing. He argues that the trial judge orally announced that he would give defendant the same credit as was given by the court in Brevard County. A certified copy of the sentence from Brevard County does in fact show that the court there gave him credit for 233 days. Additionally, the trial judge also announced credit of 17 days for the time spent here awaiting sentence. The written sentence shows only the 17 days but lacks the 233 days.
Where the written sentence does not conform to the court’s oral pronouncement of judgment and sentence, the latter prevails. Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982); Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991). The record in this case shows without contradiction that, in accepting the plea for an upward departure sentence, the trial court specifically intended to award the defendant the same amount of jail credit that he had previously received in a separate case in Brevard County. In addition, the record demonstrates that the trial court also intended to award 17 days jail credit for the time incarcerated before the imposition of this sentence.
Under these circumstances, remand for correction of the written sentence is necessary because the written sentence does not reflect the intent of the orally pronounced sentence. See Martindale v. State, 678 So. 2d 883 (Fla. 4th DCA 1996) (remand for correction of written sentence is required where intent of oral pronouncement is not reflected in the written sentence); Davis v. State, 677 So. 2d 1366 (Fla. 4th DCA 1996) (written sentence must conform to trial court’s oral pronouncement of sentence); see also Benson v. State, 613 So. 2d 555 (Fla. 4th DCA 1993) (defendant who entered into plea agreement that sentence was to run concurrent with his sentence in another county held entitled to jail credit for time served in the other county).
REVERSED AND REMANDED TO CORRECT SENTENCE TO REFLECT PROPER CREDIT.
GUNTHER, POLEN and FARMER, JJ., concur.
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Citator
Cited By
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White v. State, 702 So. 2d 1327 (Fla. 4th DCA 1997)…encing guidelines scoresheet, departing from the guidelines based on three factors, two of which, as the state concedes, were error because the trial court failed to orally articulate these two grounds at the sentencing hearing. See Gillen v. State, 696 So. 2d 952 (Fla. 4th DCA 1997). The trial court stated that the third departure ground was that the appellant had engaged in similar driving misconduct in the past. “Since prior convictions are already factored in as part of the presumptive guidelines senten…
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Spatcher v. State, 228 So. 3d 1162 (Fla. 1st DCA 2017)…onsidering the plea agreement and counsel’s argument at sentencing, we should find the court’s intent was to give credit on all charges. But even if we were to look, behind the oral pronouncement to find the court’s true intent, cf. Gillen v. State, 696 So. 2d 952, 953 (Fla. 4th DCA 1997) (examining trial court’s intent to determine if there was a discrepancy between the oral and written sentences), we would affirm. The handwritten plea agreement said “one year community control (DO) followed' by 5 years drug…
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Cleon Greenwood v. State, 766 So. 2d 1220 (Fla. 4th DCA 2000)…appeal. We reverse the sentence to include the award of six months credit for jail time orally pronounced by the trial court but not reflected in the written judgment of sentence. See Greenwood v. State, 764 So. 2d 573 (Fla.2000); Gillen v. State, 696 So. 2d 952 (Fla. 4th DCA 1997). WARNER, C.J., DELL and KLEIN, JJ., concur. . Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th DCA 1973), approved by Hardwick v. State, 521 So. 2d 1071, 1074-75 (Fla.1988).…
Authorities Cited
- Daniels v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982)
- Chauncey L. Davis v. State, 677 So. 2d 1366 (Fla. 4th DCA 1996)
- Martindale v. State, 678 So. 2d 883 (Fla. 4th DCA 1996)
- Howard v. State, 591 So. 2d 1067 (Fla. 4th DCA 1991)
- Benson v. State, 613 So. 2d 555 (Fla. 4th DCA 1993)