LUIS ESTEBAN CHICO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim that a written sentence does not reflect the oral pronouncement is not cognizable under rule 3.800(a) if the error is not apparent on the face of the sentencing documents.
The appellant alleged that the trial court orally granted him credit for time served upon resentencing, but this credit was not reflected in the writt…
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PER CURIAM.
Luis Esteban Chico appeals the order entered by the trial court summarily denying his pro se and unsworn “Petition for Nunc Pro Tunc,” which in substance appears to be an unsworn motion to correct his sentence. See Fla. R.Crim. P. 3.800(a). We affirm. In his motion Mr. Chico alleged that, upon violation of his probation, the trial court resentenced him to a term of 7 years’ imprisonment and orally granted him credit for the years he had served on his original sentence. However, upon entering DOC custody, he was allegedly informed that the 4]6 year credit “orally assured by both the judge and the state attorney” was void.
Mr. Chico requested the trial court to grant him “specific performance,” asking the court “to stand by the orally pronounced sentence [he] was originally given.” The trial court correctly denied this claim for postconviction relief.
It may well be that Mr. Chico’s written sentence does not accurately reflect the trial court’s oral disposition. However, such a claim of error is not cognizable pursuant to a rule 3.800(a) proceeding because the alleged error is not apparent on the face of the sentencing documents. See State v. Mancino, 714 So. 2d 429, 433 (Fla.1998). Instead, such an error must be raised on direct appeal.
We note that Mr. Chico’s allegations might support a claim that his plea was involuntarily made. See Fla. R.Crim. P. 3.850. Accordingly, we affirm without prejudice so that Mr. Chico may file a sworn rule 3.850 motion. However, we observe that the two-year time period for filing a rule 3.850 motion might have already elapsed since Mr. Chico alleges that he was resentenced in March 1997.
AFFIRMED.
HARRIS, THOMPSON and ANTOON, JJ. concur.
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Williams v. State, 957 So. 2d 600 (Fla. 2007)…; see also England v. State, 879 So. 2d 660 (Fla. 5th DCA 2004); Pittman v. State, 859 So. 2d 555 (Fla. 5th DCA 2003); Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003); Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001). But see Chico v. State, 734 So. 2d 519 (Fla. 5th DCA 1999) (rule 3.800 motion not cognizable because relief was not apparent on the face of the record). In Williams, the Fourth District concluded that “a mere allegation of a difference between the oral pronouncement and the written judg…
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Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001)…signate that the defendant is an habitual offender, and not an habitual violent offender. The proof required for these separate classifications varies, and the oral and written inconsistency is apparent on the face of the record. Cf. Chico v. State, 734 So. 2d 519 (Fla. 5th DCA 1999) (where alleged error was not apparent on the face of the sentencing documents, relief was properly denied). Although the written sentences likely contain only a scrivener’s error, the sentences show an adjudication for an habitua…
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Wilson v. State, 737 So. 2d 652 (Fla. 5th DCA 1999)…PER CURIAM, See Chico v. State, 734 So. 2d 519, 24 Fla. L. Weekly D1240 (Fla. 5th DCA 1999). AFFIRMED. HARRIS, GRIFFIN and THOMPSON, JJ., concur.…
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- State v. Mancino, 714 So. 2d 429 (Fla. 1998)