WILLIAM EDWARD JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
In this direct criminal appeal, appellant complains about the trial court’s failure to give a requested jury instruction, and about certain inconsistencies between the oral pronouncement of the judgment and sentence and the written documents. We affirm appellant’s convictions and sentences, as orally pronounced, for aggravated battery and one count of resisting arrest without violence. However, we remand with directions that the trial court correct the written judgment and sentence to reflect the oral pronouncement— i.e., that appellant was convicted of only one count of resisting arrest without violence; and that the sentence for that offense was one year, to be served concurrently with the sentence for aggravated battery. We reject the state’s argument that these errors were not preserved, as required by section 924.051(3), Florida Statutes (Supp.1996), because they are “fundamental.” See Robinson v. State, 667 So. 2d 384 (Fla. 1st DCA 1995) (conviction of crime that did not occur is fundamental error); Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997) (illegal sentence constitutes fundamental error).
AFFIRMED and REMANDED, with directions.
MINER, ALLEN and WEBSTER, JJ., concur.
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…deviation from an oral pronouncement that results in an increased term of incarceration is a patent, serious sentencing error that should be corrected on appeal as fundamental during this window period. 711 So. 2d at 1230; see also Johnson v. State, 701 So. 2d 382 (Fla. 1st DCA 1997) (correcting a deviation from the oral pronouncement of sentence resulting in the written judgment convicting the defendants of additional counts of resisting arrest). We find that these considerations mandating correction continu…
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…ng might be categorized as due process violations, see 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.…
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Mason v. State, 710 So. 2d 82 (Fla. 1st DCA 1998)…eservation in the trial court because such errors amount to fundamental errors. Accordingly, we remand this case to the circuit court with directions to conform the written probationary order to the court’s oral pronouncements. See Johnson v. State, 701 So. 2d 382, 382-83 (Fla. 1st DCA 1997) (affirming and remanding with directions that trial court correct written judgment and sentence to reflect oral pronouncement because inconsistencies between oral pronouncement and written judgment and sentence, which ref…
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- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)
- Robinson v. State, 667 So. 2d 384 (Fla. 1st DCA 1995)