MICHAEL ANTHONY LEMAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the three-year minimum mandatory term imposed for aggravated assault with a firearm because the trial court's written sentence did not conform to its oral pronouncement of aggravated assault with a weapon, while affirming convictions without prejudice to raising an Ashley violation claim through postconviction relief.
A written sentence that imposes a minimum mandatory term not orally pronounced at sentencing must be reversed and corrected to reflect the crime actually charged.
[1] A written sentence that imposes a minimum mandatory term not orally pronounced at sentencing must be reversed and the judgment corrected to reflect the offense actually c…
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Join FLexlaw to unlock all legal intelligenceLemar pleaded guilty to aggravated assault with a weapon, among other crimes, but the written sentence imposed a three-year minimum mandatory term app…
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BLUE, Judge.
Michael Anthony Lemar argues, and the State concedes, that the written sentence does not conform to the trial court’s oral pronouncement. Lemar entered a plea to, among other crimes, aggravated assault with a weapon, not with a firearm. Accordingly, we reverse the three-year minimum mandatory term that was not orally pronounced at sentencing. See Kendrick v. State, 591 So. 2d 671 (Fla. 2d DCA 1991). On remand, the trial court shall strike the minimum mandatory term and shall correct the judgment to reflect a conviction for aggravated assault with a weapon, not with a firearm.
Lemar also argues that he should be allowed to withdraw his plea because the trial court failed to advise him of the consequences of habitualization, as required by Ashley v. State, 614 So. 2d 486 (Fla.1993). In State v. Thompson, 735 So. 2d 482 (Fla.1999), the supreme court held that this type of Ashley violation “involves a fact-based determination regarding the voluntariness of the plea and must be raised in the trial court, either in a timely motion to withdraw the plea or in a motion for postconviction relief.” 735 So. 2d at 486. Accordingly, we affirm Lemar’s convictions without prejudice to Lemar raising this claim by a timely filed motion for postconviction relief.
Affirmed in part, reversed in part, and remanded with directions.
PATTERSON, C.J., and GREEN, J., Concur.
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- State v. Thompson, 735 So. 2d 482 (Fla. 1999)
- Kendrick v. State, 591 So. 2d 671 (Fla. 2d DCA 1991)