JUSTIN MINICHINO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The oral pronouncement of a sentence in the plea colloquy controls over a scrivener's error in the written sentencing order.
[1] The oral pronouncement of a sentence in a plea colloquy controls over a scrivener's error in the written sentencing order.
[2] A defendant is not entitled to release based on a scrivener's error in a sentencing order when the oral pronouncement clearly established a different sentence.
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 intelligenceThe defendant was sentenced to probation on two charges, with the oral pronouncement indicating consecutive terms. However, the written orders contain…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Probation Order cases and more on FLexlaw
PER CURIAM.
We grant the appellant’s motion for rehearing in part, withdraw our previous opinion dated November 15, 2000, and substitute the following:
Defendant-appellant Minichino contends that he is entitled to be released on account of a scrivener’s error in the probation order. We reject this argument.
As reflected in the plea colloquy, defendant entered into a plea bargain whereby he was sentenced to 2 years incarceration on a possession of cocaine charge (circuit court case # 91-502), followed by 2 $ years probation on the same case. He was sentenced to a consecutive 5 years of probation on an attempted arson charge (circuit court case # 91-30033). Owing to a scrivener’s error, however, the written sentencing orders indicated that the terms of probation would be concurrent, not consecutive.
Defendant contends that the written sentencing orders are controlling. Based on that faulty assumption, defendant argues that his 5-year term of probation in the attempted arson case, as well as the 2 h year term of probation in the cocaine case had expired prior to the date that the affidavit of violation of probation was filed. The defendant contends that the trial court lost jurisdiction and that he is entitled to be released from custody.
The flaw in the argument is the assumption that the erroneous written sentencing order is controlling. It is well settled that the oral pronouncement contained in the plea colloquy is controlling. E.g., State v. Williams, 712 So. 2d 762, 764 (Fla.1998). The oral pronouncement provided for a 2 % year period of incarceration followed by 2 \ years probation on the possession of cocaine case, followed by 5 years probation on the attempted arson case. Plainly the 5-year period of probation had not expired at the time the affidavit of violation was filed. Defendant’s argument on this issue is without merit.
However, we affirm the sentence but remand to the trial court with directions to award credit for 62 days previously served against the new prison sentence.
Affirmed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hepburn v. State, 780 So. 2d 326 (Fla. 3d DCA 2001)…termination of probation would be contemplated. It is well settled that the oral pronouncement contained in the plea colloquy is controlling over the written probation order. See State v. Williams, 712 So. 2d 762, 764 (Fla.1998); Minichino v. State, 776 So. 2d 994 (Fla. 3d DCA 2001). We hold that where a trial court imposes a probationary period with special conditions and further offers early termination of that probation upon successful completion of all such conditions, the early termination provision is…
Authorities Cited
- State v. Chuck Junior Williams, 712 So. 2d 762 (Fla. 1998)