ROBERT C. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson appeals his sentence imposed upon revocation of community control as a youthful offender. The court found the sentence illegal due to a scrivener's error omitting credit for time served and a discrepancy between oral and written pronouncements regarding consecutive versus concurrent sentencing.
The youthful offender sentence is illegal and must be remanded for correction to include credit for time served, as the 72 months imprisonment plus 48 months already served exceeded the six-year legal maximum for youthful offenders. The concurrent/consecutive discrepancy between oral and written sentences must also be corrected on remand.
[1] A sentence imposed upon a youthful offender that exceeds the statutory maximum of six years, without proper credit for time served, constitutes an illegal sentence and fu…
[2] A youthful offender who commits only a technical violation of probation or community control shall not be incarcerated for a period exceeding six years or the maximum sen…
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Join FLexlaw to unlock all legal intelligence“When a defendant has been declared to be a youthful offender, the sentence to be imposed, including incarceration and community control or probation, is limited to a term of six years.”
Establishes the statutory limit on youthful offender sentences under Florida law.
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Join FLexlaw to unlock all legal intelligenceJohnson was originally sentenced as a youthful offender to 48 months incarceration followed by 2 years community control for burglary with battery. Af…
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PER CURIAM.
Robert Johnson appeals the sentence entered upon revocation of a term of community control imposed as part of a youthful offender sentence. Due to a scrivener’s error the sentence is illegal and must be corrected. Further, the written sentences imposed do not comport with the oral pronouncement at sentencing.
Originally, Johnson was sentenced as a youthful offender to forty-eight months’ incarceration, followed by two years’ community control for the first-degree felony offense of burglary with a battery. Johnson successfully served the prison term, but entered into a plea agreement in which he admitted that he had technically violated the terms of his community control. He was sentenced on June 4,1998, to seventy-two months’ incarceration. Although the court orally announced that Johnson was to receive credit for the time he served in prison on the youthful offender sentence, the sentencing documents do not reflect this credit. On the same date, Johnson was sentenced to a term of ten years’ imprisonment for a new second-degree felony offense of burglary.
When a defendant has been declared to be a youthful offender, the sentence to be imposed, including incarceration and community control or probation, is limited to a term of six years. See § 958.04, Fla. Stat. (1995). When there has been only a technical violation of probation or community control by a youthful offender, he shall not be incarcerated for a period of more than six years or the maximum sentence for the offense, whichever is less, with credit for time served while incarcerated. See § 958.14, Fla. Stat. (1995).
Without the credit for time served on this youthful offender sentence as announced by the trial judge, the term of seventy-two months’ imprisonment in addition to the forty-eight months’ imprisonment already served exceeded the legal maximum of six years. This is an illegal sentence which constitutes fundamental error reviewable by this court without the requirement that the defendant have filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Bain v. State, 730 So. 2d 296, 305, 1999 WL 34708, *10 (Fla. 2d DCA 1999). The youthful offender sentence must be remanded for correction to include credit for time served. Additionally, the sentencing documents indicate that the ten-year sentence for burglary is to be served concurrently with the seventy-two month youthful offender sentence. However, at the sentencing hearing the court orally announced that the sentences were to run consecutively. Although this clerical error is not a fundamental error, this court has jurisdiction to correct the mistake because the oral/written discrepancy is intertwined with the illegal youthful offender sentence. See Denson v. State, 711 So. 2d 1225, 1229 n. 11 (Fla. 2d DCA 1998).
Accordingly, the sentences are reversed and this matter is remanded for resentencing as discussed in this opinion. Johnson need not be present for this resentencing. See Johnson v. State, 652 So. 2d 430 (Fla. 2d DCA 1995). In all other respects the sentences are affirmed.
Affirmed in part, reversed and remanded with directions.
THREADGILL, A.C.J., and GREEN and SALCINES, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Meeks, 789 So. 2d 982 (Fla. 2001)…nce imposed after probation violation because record did not reveal whether violation was substantive or technical); see also Quiles v. State, 777 So. 2d 992 (Fla. 2d DCA 2000); Escutary v. State, 753 So. 2d 650 (Fla. 3d DCA 2000); Johnson v. State, 736 So. 2d 708 (Fla. 2d DCA 1999); Robinson v. State, 702 So. 2d 1346 (Fla. 5th DCA 1997); Hill v. State, 692 So. 2d 277 (Fla. 5th DCA 1997); Johnson v. State, 678 So. 2d 934 (Fla. 3d DCA 1996); Dunbar v. State, 664 So. 2d 1093 (Fla. 2d DCA 1995); Reeves v. State,…
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Ross v. State, 819 So. 2d 924 (Fla. 1st DCA 2002)…onclude that, even though a youthful offender had been imprisoned for four years, the legislature always intended to authorize reimprisonment up to a total imprisonment of six years when community control is violated.”). Cf., e.g., Johnson v. State, 736 So. 2d 708, 709 (Fla. 2d DCA 1999) (“Without the credit for time served on this youthful offender sentence as announced by the trial judge, the term of seventy-two months’ imprisonment in addition to the forty-eight months’ imprisonment already served exceeded…
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)
- Johnson v. State, 652 So. 2d 430 (Fla. 2d DCA 1995)