JOHNNY T. DRIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny T. Driver appeals a trial court's order denying his motion to correct an illegal sentence, arguing that the written 25-year concurrent sentence does not match the trial court's alleged oral pronouncement of 15 years on count one and 10 years on count two, and that he was not orally sentenced as a habitual offender. The appellate court reverses and remands for resentencing, finding that the trial court failed to orally pronounce Driver as a habitual felony offender, making the 25-year sentences exceed the statutory maximum.
The court reversed and remanded for resentencing, holding that when a written order does not conform to the trial court's oral pronouncement, the oral pronouncement controls. The court found that the trial court did not orally sentence Driver as a habitual offender, and therefore the 25-year sentences exceeded the statutory maximum of 15 years.
[1] When a written sentencing order does not conform to the trial court's oral pronouncement, the oral pronouncement controls.
[2] A trial court must address all allegations raised in a motion to correct an illegal sentence.
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Join FLexlaw to unlock all legal intelligence“When a written order does not conform to the trial court's oral pronouncement, the oral pronouncement controls.”
Establishes the fundamental principle governing the discrepancy between written and oral sentences.
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Join FLexlaw to unlock all legal intelligenceDriver was convicted of two counts of attempted sexual battery on August 26, 1987. The written judgment sentenced him to 25 years on each count to be …
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[*653] PER CURIAM.
Johnny T. Driver, for the second time, appeals the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. Previously, this court reversed the trial court’s order denying relief and remanded for further proceedings because the record attached to the trial court’s order failed to refute the allegations in Driver’s motion. See Driver v. State, 695 So. 2d 1318 (Fla. 2d DCA 1997). Once again, we reverse and remand because the trial court’s attachments fail to refute Driver’s claim that his sentence is illegal.
Driver was convicted of two counts of attempted sexual battery on August 26,1987. The written judgment and sentence indicates Driver was sentenced to twenty-five years’ incarceration on each count, to be served concurrently, as a habitual felony offender. Driver claims that the trial court orally sentenced him to fifteen years’ imprisonment on count one with a concurrent ten years’ imprisonment on count two. He further claims that the trial court failed to orally pronounce him to be a habitual felony offender. When a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. See Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985).
In its initial order denying Driver’s motion, the trial court stated that Driver “was adjudged an habitual offender, and was sentenced under Florida Statutes Section 775.084(4)(a), which allows the penalty for a second-degree felony to be enhanced to a term of up to 30 years.” This court reversed the trial court’s order and remanded for further proceedings, explaining that the attachments to the order did not refute Driver’s allegations.
On remand, the trial court again denied Driver’s motion based on a finding that:
[T]he record shows the Court orally pronounced a sentence of fifteen years on count one and a sentence of ten years on count two, and then further found justification for departure and orally pronounced that counts one and two will be a sentence of twenty-five years to run concurrent. Thus, the Court’s final and oral pronouncement of sentence does not differ from the written sentence.
The trial court neglected to address Driver’s allegation that he was not orally sentenced as a habitual offender. Based on our review of the transcript of the sentencing hearing that the trial court attached to its second order, it appears that the trial court did not sentence Driver as a habitual offender under section 775.084, Florida Statutes (1985). Notwithstanding the fact that the trial court filed departure reasons, without a determination that Driver is a habitual offender, the twenty-five year sentences exceed the statutory maximum.
Therefore, we reverse and remand for the trial court to resentence Driver. The trial court may again depart from the guidelines based upon any of the original reasons that remain valid. See Blackwelder v. State, 570 So. 2d 1027 (Fla. 2d DCA 1990). However, the sentence imposed may not exceed the statutory maximum of fifteen years.
Reversed and remanded for resentencing.
THREADGILL, A.C.J., and FULMER and GREEN, JJ., concur.
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State v. Thompson, 750 So. 2d 643 (Fla. 1999)…la.1998) (citing Justice v. State, 674 So. 2d 123, 125 (Fla.1996), for the proposition that "there is a judicial policy that the actual oral imposition of sanctions should prevail over any subsequent written order to the contrary”); Driver v. State, 710 So. 2d 652, 653 (Fla. 2d DCA 1998) (stating that "[w]hen a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls"). . We issued the order requesting supplemental briefing on July 6, 1999, and such briefing was…
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Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)…nciple of law — that a court’s oral pronouncement of sentence controls over the written document. See, e.g., State v. Jones, 753 So. 2d 1276, 1277 (Fla.2000); State v. Williams, 712 So. 2d 762 (Fla.1998); Justice, 674 So. 2d at 126; Driver v. State, 710 So. 2d 652, 653 (Fla. 2d DCA 1998). Generally, the oral pronouncement prevails unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit. See Martindale v. State, 678 So. 2d 883, 884 (Fla. 4th DCA 1996).3 We reco…
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Telisia Shaonte Kelley v. Rice, 800 So. 2d 247 (Fla. 2d DCA 2001)…f a wholesale denial of Ms. Kelley’s rights under the Florida Rules of Criminal Procedure and the Florida and Federal Constitutions. Beyond that, the written judgment conflicts with the judge’s oral pronouncement at the hearing. See Driver v. State, 710 So. 2d 652 (Fla. 2d DCA 1998). According to the oral pronouncement, the judge found Ms. Kelley guilty of some unspecified variety of contempt. This, in turn, admits of three possibilities: civil, direct criminal, or indirect criminal. We eliminate civil conte…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bogan v. State, 462 So. 2d 115 (Fla. 2d DCA 1985)
- O'Byrne v. State, 462 So. 2d 115 (Fla. 2d DCA 1985)
- Blackwelder v. State, 570 So. 2d 1027 (Fla. 2d DCA 1990)
- Arkadile v. State, 695 So. 2d 1318 (Fla. 2d DCA 1997)