GREGORY HENDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory Henderson appeals his conviction for possession of cocaine, possession of cannabis, and resisting arrest without violence. The jury verdict is affirmed, but the case is remanded to correct a discrepancy between the oral pronouncement of sentence (16 months according to the transcript) and the written sentence (60 months), as the context suggests the judge intended to impose the guidelines minimum of 60 months.
The conviction is affirmed, but the case is remanded to the trial judge to settle and correct the record regarding the actual oral sentencing pronouncement. The court will not simply reverse based on the transcript discrepancy given the contextual evidence.
[1] A written sentence must conform to the oral pronouncement of sentence.
[2] A court may remand a case to settle or correct the record of an oral sentencing pronouncement when the accuracy of the transcript is in doubt.
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“Obviously the spoken words "sixteen" and "sixty" are homophonie. We take judicial notice of the fact that these words are often misunderstood by listeners even under ideal acoustic conditions.”
Explains why the court reporter's transcript may be inaccurate and supports remand for clarification rather than automatic reversal.
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Join FLexlaw to unlock all legal intelligenceHenderson was convicted by jury of possession of cocaine, possession of cannabis, and resisting arrest without violence. He has a significant prior cr…
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FARMER, Judge.
The jury found defendant guilty of possession of cocaine, possession of cannabis, and resisting arrest without violence. We affirm the conviction in all respects. That leaves only the issue of the sentence.
Defendant argues on appeal that the written sentence of 60 months does not conform to the oral pronouncement of sentence. The written sentence does show “60” months in two separate places in the handwriting. There is nothing in writing indicating a departure sentence. Our review of the transcript does indeed find that the court reporter has indicated an oral pronouncement of “16” months, and in fact the state concedes the issue on appeal. Ordinarily, that would be the end of the matter and we would reverse for correction of the sentencing document.
The record in this case is more edifying, however. It shows that defendant has a significant prior record of convictions, including multiple counts of sexual battery on a child, and single counts of burglary, battery on a law enforcement officer, grand theft, and resisting arrest with violence. His guidelines seoresheet shows total sentence points of 108.2, with a sentence computation of 80.2 months. The discretionary range is 60.15 to 100.25 months. In other words, the minimum guidelines sentence was 60 months. The sentencing transcript reveals that the trial judge recognized this when he said “It looks like the minimum the court can sentence under the guidelines ... is up to 60.15 [months].” There is absolutely nothing in the judge’s comments suggesting that he would consider a departure sentence below the guidelines range.
Obviously the spoken words “sixteen” and “sixty” are homophonie. We take judicial notice of the fact that these words are often misunderstood by listeners even under ideal acoustic conditions. The record and context of the sentencing dialogue call into question the accuracy of the court reporter’s account of what the judge actually said at sentencing. In spite of the state’s concession, we have considerable doubt that the transcript of the oral pronouncement of sentence speaks the truth.
We therefore remand this cause to the trial judge to settle — and, if necessary, to correct — the record as to the actual oral sentencing pronouncement.
CONVICTION AFFIRMED; REMANDED TO SETTLE RECORD OF PRONOUNCEMENT OF SENTENCE.
STEVENSON and SHAHOOD, JJ., concur.
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Williams v. State, 886 So. 2d 1078 (Fla. 2d DCA 2004)…nd for the trial court to resolve the discrepancy and, if necessary, to correct the record as to the actual oral pronouncement of the conditions that were violated. See Cunningham v. State, 818 So. 2d 685, 686 (Fla. 2d DCA 2002); Henderson v. State, 701 So. 2d 911, 912 (Fla. 4th DCA 1997). We reject Williams’ contention that the trial court should be directed to reconsider the revocation because, given the violations shown here, there is no reasonable possibility that the outcome would be different. Cf. Melec…