BRUCE CUNNINGHAM, APPELLANT,
v.
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.
Cunningham was convicted of lewd and lascivious conduct with a child and appeals his judgment and sentence. The court affirmed the conviction but reversed and remanded the sentencing due to a discrepancy between the trial court's oral pronouncement of an eighteen-year sentence and its written order imposing thirty years.
When a discrepancy exists between a trial court's written sentencing order and its oral pronouncement, and the State does not concede the written order is erroneous, remand is appropriate for the trial court to make a factual determination to resolve the conflict.
[1] A written sentencing order must conform to the trial court's oral pronouncement of sentence.
[2] When a discrepancy exists between a trial court's written sentencing order and its oral pronouncement, the oral pronouncement generally prevails.
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 intelligence“A trial court's written order of judgment and sentence must not vary from its oral pronouncement.”
Establishes the fundamental rule requiring consistency between written and oral sentencing pronouncements.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCunningham was convicted of a lewd and lascivious act in the presence of a child under sixteen years old. At sentencing, the State requested thirty ye…
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 Discrepancy Between Oral And Written Sentence cases and more on FLexlaw
SILBERMAN, Judge.
Bruce Cunningham challenges his judgment and sentence for a lewd and lascivious act in the presence of a child under the age of sixteen years. We affirm on all issues except as to a discrepancy between the trial court’s written sentencing order and its oral pronouncement of sentence. Concerning that issue, we reverse and remand for the trial court to resolve the discrepancy.
At the sentencing hearing, the State requested that Cunningham be sentenced to thirty years in prison as a habitual felony offender and that he be designated a sexual predator. Apart from claiming innocence, Cunningham did not ask for a lesser sentence. Just before announcing the sentence, the trial court commented regarding Cunningham’s conduct during the preceding eighteen years. The transcript then reflects the trial court’s oral pronouncement of a sentence of eighteen years’ imprisonment. The written sentencing order was entered on the date of the sentencing hearing and reflects a sentence of thirty years’ imprisonment.
Cunningham claims that because a discrepancy exists between the written order and the oral pronouncement of sentence, he must be resentenced in accordance with the oral pronouncement. The State suggests that the written order is correct and that the discrepancy is due to a clerical error by the court reporter. It points to the trial court’s reference to Cunningham’s eighteen years of conduct as the source of the stenographic error. A trial court’s written order of judgment and sentence must not vary from its oral pronouncement. Yates v. State, 429 So. 2d 815, 815 (Fla. 2d DCA 1983). Generally, when the trial court’s written order is inconsistent with its oral pronouncement, the oral pronouncement prevails. Adams v. State, 619 So. 2d 34, 35 (Fla. 2d DCA 1993); Harmon v. State, 599 So. 2d 754, 756 (Fla. 4th DCA 1992). However, when the State does not concede that the written order is in error, remand is appropriate for the trial court to make a factual determination to resolve the conflict between the written order and the oral pronouncement. Enchautegui v. State, 749 So. 2d 550, 551 (Fla. 2d DCA 2000); Manual v. State, 547 So. 2d 726, 726 (Fla. 2d DCA 1989).
We conclude that remand is appropriate in order that the trial court may resolve the discrepancy. Accordingly, we reverse the sentence and remand with directions for the trial court to resolve the conflict between the written sentencing order and the oral pronouncement.
Affirmed in part, reversed in part, and remanded with directions.
NORTHCUTT and COVINGTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McNEIL v. State, 908 So. 2d 556 (Fla. 2d DCA 2005)…42-47. Because the oral pronouncement controls, see Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986), and the State has conceded error, we remand for correction of the written order to conform with the oral pronouncement. See Cunningham v. State, 818 So. 2d 685 (Fla. 2d DCA 2002). We also remand for entry of a finding that McNeil had the ability to pay certain costs that the court imposed. Although McNeil argues on appeal that the trial court’s failure to make a finding that he had the ability to pay tho…
-
Weston Coleman v. State, 898 So. 2d 997 (Fla. 2d DCA 2005)…een the written order and the oral pronouncement of sentence, the trial court must resentence Coleman. Generally, when the trial court’s written order is inconsistent with its oral pronouncement, the oral pronouncement prevails. Cunningham v. State, 818 So. 2d 685, 686 (Fla. 2d DCA 2002). However, when the State does not concede that the written order is in error, as in the present case, remand is appropriate for the trial court to make a factual determination to resolve the conflict between the written order…
-
Williams v. State, 886 So. 2d 1078 (Fla. 2d DCA 2004)…g to violations of conditions 35 and 36. We reverse and remand for the trial court to resolve the discrepancy and, if necessary, to correct the record as to the actual oral pronouncement of the conditions that were violated. See Cunningham v. State, 818 So. 2d 685, 686 (Fla. 2d DCA 2002); Henderson v. State, 701 So. 2d 911, 912 (Fla. 4th DCA 1997). We reject Williams’ contention that the trial court should be directed to reconsider the revocation because, given the violations shown here, there is no reasonabl…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of R.B. v. State, 429 So. 2d 815 (Fla. 2d DCA 1983)
- Yates v. State, 429 So. 2d 815 (Fla. 2d DCA 1983)
- Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992)
- Manual v. State, 547 So. 2d 726 (Fla. 2d DCA 1989)
- Ernestor Enchautegui v. State, 749 So. 2d 550 (Fla. 2d DCA 2000)
- Colon v. State, 619 So. 2d 34 (Fla. 2d DCA 1993)