WILLIE G. MASSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Massey appealed a probation revocation sentence where the written judgment omitted a credit for time previously served that was orally pronounced. The court held that while the discrepancy was clear and undisputed, the defendant must first raise such errors in the lower court by motion before appellate review, consistent with recent amendments to Florida Rule of Criminal Procedure 3.800(b).
The court held that errors where the written sentence fails to conform to the oral pronouncement must first be raised in the lower court by motion before appellate review is available. The court relinquished jurisdiction to allow the defendant thirty days to file such a motion and obtain correction in the lower court.
[1] A written sentence that fails to conform to the oral pronouncement of a sentence must first be raised in the lower court.
[2] Discrepancies between oral and written sentences are subject to correction via motion in the lower court.
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Join FLexlaw to unlock all legal intelligence“It appears without dispute that, upon revocation of probation, the lower court orally pronounced a sentence of ten years in the department of corrections, with credit for time previously served and 133 days time served while awaiting trial but the written sentence omitted the "time previously served" credit.”
Establishes the factual error that is the subject of the appeal—the discrepancy between oral pronouncement and written judgment.
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Join FLexlaw to unlock all legal intelligenceUpon revocation of probation, the trial court orally pronounced a ten-year sentence with credit for time previously served and 133 days of time served…
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GRIFFIN, Chief Judge.
It appears without dispute that, upon revocation of probation, the lower court orally pronounced a sentence of ten years in the department of corrections, with credit for time previously served and 133 days time served while awaiting trial but the written sentence omitted the “time previously served” credit. The state does not dispute the error but contends that in light of the Criminal Appeal Reform Act of 1996 and the supreme court’s companion amendment to Florida Rule of Criminal Procedure 3.800(b), the defendant’s failure to assert this error below within the time permitted by the rule precludes review. Prior to these events, regardless of whether the discrepancy had been raised below, such an error was routinely dealt with on direct appeal. Also, prior to the amendment to Rule 3.800, the prevailing view appears to have been that for post-conviction relief purposes this type of error was most properly considered under Rule 3.850, not Rule 3.800. See Pope v. State, 489 So. 2d 883 (Fla. 2d DCA 1986).
Although the broader language of the amendment will facilitate use of Rule 3.800 to correct such a mistake, it appears still to be subject to review under Rule 3.850. Consistent with the intent of the recent amendments to Rule 3.800, however, we agree that such an error should first be brought to the attention of the lower court by motion. Because this error arose shortly after the new legislation and while the rule amendments have been in flux, we deem it prudent simply to relinquish jurisdiction of this appeal to the lower court for thirty days from the date of this opinion during which appellant may file a motion and obtain the required correction. If the correction is made, this appeal will be moot. We also notify all concerned that from this point forward a claim that the written sentence fails to conform to the oral pronouncement must first be raised in the lower court.
JURISDICTION RELINQUISHED.
COBB and ANTOON, JJ., concur.
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…e Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997), a violation of the plea agreement, see Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997),7 or even clerical error. See Johnson v. State, 701 So. 2d 382 (Fla. 1st DCA 1997); Massey v. State, 698 So. 2d 607 (Fla. 5th DCA 1997). Additionally, fines and penalties are not always imposed as part of a defendant’s sentence, but may constitute a civil penalty. See, e.g., Bull v. State, 548 So. 2d 1103 (Fla.1989). All such errors, however, are properly regarde…
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Williams v. State, 715 So. 2d 1175 (Fla. 5th DCA 1998)…PER CURIAM. AFFIRMED. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Maddox v.State, 708 So. 2d 617 (Fla. 5th DCA 1998); Massey v. State, 698 So. 2d 607 (Fla. 5th DCA 1997). GOSHORN, HARRIS and PETERSON, JJ., concur.…
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Dragani v. State, 836 So. 2d 1073 (Fla. 5th DCA 2003)…PER CURIAM. AFFIRMED without prejudice to defendant to raise the issue of his illegal sentence via a rule 3.800 motion in the lower court. See Massey v. State, 698 So. 2d 607 (Fla. 5th DCA 1997). THOMPSON, C.J., SAWAYA, J. and HARRIS, C.M., Senior Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 489 So. 2d 883 (Fla. 2d DCA 1986)
- Steven VAN ORE, M.D. v. Bd. OF Med. Exam'rs, 489 So. 2d 883 (Fla. 5th DCA 1986)