MARCUS VERNELL BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a written sentencing order must conform to the trial court's oral pronouncement.
Defendant was resentenced under different guidelines, with the oral pronouncement stating the sentence was effective nunc pro tunc to the original sen…
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PALMER, J.
Marcus Brown appeals his sentence, arguing that the trial court erred in failing to conform its written sentencing order to its oral pronouncement. We agree and therefore remand this matter to the trial court so that a corrected sentencing order can be entered.1
Brown was originally sentenced under the 1995 sentencing guidelines to a term of 120 months incarceration. When the 1995 sentencing guidelines were subsequently ruled invalid, Brown was granted a re-sentencing hearing. At the hearing, Brown was resentenced under the 1994 sentencing guidelines to a term of 117 months incarceration, and granted credit for the time he had already served. The transcript of the hearing reflects that the trial court ordered that Brown’s re-sentencing was effective nunc pro tunc to the date of the original sentencing hearing; however, the written sentencing order fails to reflect the nunc pro tunc language.
It is well established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. See Arnold, v. State, 754 So. 2d 149, 150 (Fla. 2d DCA 2000). Accord Lesesne v. State, 706 So. 2d 137 (Fla. 5th DCA 1998). Since the record demonstrates that the trial court pronounced at the re-sentencing hearing that the defendant’s sentence was to run nunc pro tunc to the date the original sentence was entered, we remand this matter to the trial court with instructions to correct the sentencing order to reflect the court’s oral pronouncement.
Sentence VACATED and cause REMANDED for entry of a corrected sentencing order. COBB and HARRIS, JJ., concur. . Brown attempted to raise his claim of sentencing error to the trial court by filing a motion pursuant to rule 3.800(b) of the Florida Rules of Criminal Procedure while the instant appeal was pending; however, the trial court failed to rule thereon.
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Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005)…ee Shorter v. State, 891 So. 2d 1146, 1147 (Fla. 4th DCA 2005) (“The Court thus convicted and sentenced appellant nunc pro tunc to the earlier date of November 18, 1996, which was when, but for a mistake, it should have been done.”); Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001). In Briseno v. Perry, 417 So. 2d 813 (Fla. 5th DCA 1982), review denied, 427 So. 2d 736 (Fla.1983), we explained: Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment it normally refers,…
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Parris v. State, 974 So. 2d 415 (Fla. 5th DCA 2007)…r. . Appellant also sought rehearing en banc, which has been denied by separate order. . Bitzer v. State, 958 So. 2d 1029 (Fla. 5th DCA 2007); Knight v. State, 954 So. 2d 1266 (Fla. 5th DCA 2007). Knight relied upon our decision in Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001), in which the error had [*416] been preserved by a rule 3.800(b) motion. Brown, 786 So. 2d at 1258 n. 1. . In addition to Thomas, there are several other cases on all fours but none were cited to us by either party. See, e.g., E…
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Knight v. State, 954 So. 2d 1266 (Fla. 5th DCA 2007)…written orders of revocation provide that Knight had violated Conditions (1), (3) and (8). It is well-established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001). We remand this cause solely for the purpose of enabling the trial court to enter written orders of revocation, nunc pro tunc, in accordance with its oral pronouncement. Knight does not need to be present. Mosco v. State, 640 S…
Authorities Cited
- Arnold v. State, 754 So. 2d 149 (Fla. 2d DCA 2000)
- Cascella v. Canaveral Port Auth., 706 So. 2d 137 (Fla. 5th DCA 1998)
- Williams v. State, 706 So. 2d 137 (Fla. 5th DCA 1998)