GARY FAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Fain appealed the trial court's denial of his Rule 3.800(a) motion challenging his sentence for second-degree murder. The appellate court affirmed three of Fain's claims but reversed and remanded one claim regarding the trial court's failure to orally pronounce him a habitual violent felony offender and the associated mandatory minimum sentence.
The court held that the habitual violent felony offender designation and the fifteen-year mandatory minimum must be stricken from the sentence because they were not orally pronounced by the trial court. However, the life sentence itself remains valid because it does not exceed the statutory maximum for second-degree murder.
[1] A trial court's subsequent imposition of a habitual felony offender designation to a defendant's judgment and sentence after the defendant has begun serving the sentence…
[2] When there is a discrepancy between a written sentence and an oral pronouncement, the oral pronouncement prevails.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where the written sentence indicates the defendant was sentenced as a habitual offender, but the trial court fails to orally pronounce the sentence as a habitual offender, the habitual offender sanction must be stricken from the sentence.”
Establishes the key legal rule regarding discrepancies between written and oral pronouncements of habitual offender status
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Join FLexlaw to unlock all legal intelligenceFain was convicted of second-degree murder and aggravated assault. The written sentence reflected that Fain was sentenced as a habitual violent felony…
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PER CURIAM.
Gary Fain challenges the trial court’s summary, denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Fain’s motion contained four claims. We affirm the trial court’s rulings without discussion on three of the claims, but we reverse and remand with directions to the trial court on one of the claims.
Fain was convicted of second-degree murder and aggravated assault. The written sentence reflects that Fain was sentenced on the second-degree murder conviction as a habitual violent felony offender to life imprisonment with a fifteen-year mandatory minimum. • Fain alleged that this sentence is illegal because the trial court did not orally sentence him as a habitual violent felony offender and did not orally pronounce a fifteen-year mandatory minimum term. Fain is correct in his assertions regarding the oral pronouncements of the trial court. This claim is cognizable in a 3.800(a) motion. See Simon v. State, No. 2D00-3703, — So. 2d -, 2001 WL 98564 (Fla. 2d DCA Feb.7, 2000); Brooks v. State, 768 So. 2d 513 (Fla. 2d DCA 2000).
Where the written sentence indicates the defendant was sentenced as a habitual offender, but the trial court fails to orally pronounce the sentence as a habitual offender, the habitual offender sanction must be stricken from the sentence. Simon, No. 2D00-3703, — So. 2d -; Brooks, 768 So. 2d 513.
However, the sentence is only illegal if it exceeds the statutory maximum for the offense. Id. Second-degree murder is a first-degree felony punishable by life. § 782.04(2), Fla. Stat. (1991).
Therefore, on remand, the trial court shall strike the habitual violent felony offender designation from Fain’s written sentence. The length of the sentence shall remain the same since it does not exceed the statutory maximum. Also, on remand, the trial court shall strike the fifteen-year mandatory minimum portion of the sentence because it was not orally announced. See Brooks, 768 So. 2d 513 (holding that when discrepancy exists between oral pronouncement and written sentence, remand is necessary to correct the error).
Affirmed in part, reversed in part, and remanded with instructions.
PARKER, A.C.J., and FULMER and SALCINES, JJ., concur.
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Citator
Cited By
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Fain v. State, 888 So. 2d 762 (Fla. 2d DCA 2004)…a long ánd complex history that, hopefully, is unique. In an earlier appeal, having failed to recognize the same sentencing issue that Fain raises herein, we reversed an order denying Fain’s motion to correct an illegal sentence. See Fain v. State, 780 So. 2d 285 (Fla. 2d DCA 2001). Fain was unrepresented in that proceeding, and we did not obtain input from the State. • Regrettably, our instructions on remand in that appeal were not completely accurate, and our confusion has, in turn, resulted in continuing…
Authorities Cited
- Errol D. Brooks v. State, 768 So. 2d 513 (Fla. 2d DCA 2000)