TERRY A. COTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry Cote appeals his conviction for cannabis possession, challenging his sentence where the written judgment imposed consecutive probation and jail time, while the oral pronouncement required only the jail term with probation to run concurrently. The court held that appellate courts have authority to correct facially illegal sentences even when the error is unpreserved, invoking the inherent power to grant relief in the interest of justice.
The court held that appellate courts have authority under Florida Rule of Appellate Procedure 9.140(i) to correct facially illegal sentences in the interest of justice, even when the challenge has not been preserved. A written sentence that imposes a longer term than the oral pronouncement is illegal and subject to correction on appeal.
[1] An appellate court may grant relief from a facially illegal sentence even if the sentencing error was not preserved in the trial court.
[2] A written sentence that imposes a longer sanction than that orally pronounced by the sentencing judge is an illegal sentence.
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“a judge is never authorized to impose a written sentence that increases the length of the sentence beyond the term orally pronounced”
Establishes the fundamental principle that written sentences cannot exceed oral pronouncements, making such sentences facially illegal.
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Join FLexlaw to unlock all legal intelligenceCote was adjudicated guilty of possession of cannabis in excess of twenty grams. The trial judge orally pronounced a sentence of two years' probation …
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FULMER, Judge.
Terry A. Cote challenges his judgment and sentence for possession of cannabis in excess of twenty grams. We find merit in one sentencing issue raised in this appeal. Although this error is unpreserved, it is an error that renders the sentence illegal. Just as a trial court has authority to correct an illegal sentence at any time under Florida Rule of Criminal Procedure 3.800(a), we hold that this court has authority under Florida Rule of Appellate Procedure 9.140(i)1 to require a trial court to correct a facially illegal sentence even if a challenge to the illegal sentence has not been preserved.
Mr. Cote was adjudicated guilty and sentenced to two years’ probation with the condition that he serve six months in the county jail. However, the written sentence states that Mr. Cote’s probation is to be served consecutive to his jail term. Thus, the written sentence varies from the oral pronouncement and results in a longer sanction than that orally imposed. Mr. Cote failed to seek correction of his writ ten sentence pursuant to either rule 3.800(b)(1) or (b)(2). Therefore, this sentencing error was not preserved.
Dicta in Maddox v. State, 760 So. 2d 89 (Fla.2000), suggests that defendants would be barred from raising unpreserved sentencing errors on direct appeal after the effective date of the amendments to rule 3.800(b). Three district courts of appeal have adopted this interpretation, which in our view appears to limit appellate review beyond the level envisioned by the legislature when it enacted section 924.051, Florida Statutes (Supp.1996), as part of the Criminal Appeal Reform Act of 1996.2
We need not decide whether to join our sister courts in their interpretation of Maddox because we conclude that this sentencing error can and should be corrected under the authority of rule 9.140(i), which states that “in the interest of justice the court may grant any relief to which any party is entitled.” In Maddox, the supreme court addressed the preservation requirements imposed by section 924.051(3) and rule 9.140(e)3 and anticipated “that the interests of justice should be served by the ability of appellate counsel to first raise [an otherwise unpreserved sentencing] issue in the trial court prior to filing the first appellate brief.” Id. at 98. What Maddox does not address is the situation in which appellate counsel fails to file a rule 3.800(b)(2) motion and an illegal sentence appears on the face of the record in a direct appeal. It can hardly be said that the interests of justice are served by an interpretation of Maddox that would prevent this court from exercising its inherent authority, expressly recognized in rule 9.140(i), to grant relief from such errors. There can be no question that a defendant is entitled to relief from an illegal sentence.
Mr. Cote is serving a sentence that differs from the sentence actually imposed by the sentencing judge and, more importantly, is longer than the sentence pronounced. This sentence is illegal under Carter v. State, 786 So. 2d 1173 (Fla.2001), because a judge is never authorized to impose a written sentence that increases the length of the sentence beyond the term orally pronounced. Because his sentence is illegal, Mr. Cote would be entitled to relief pursuant to rule 3.800(a). Therefore, we invoke our authority pursuant to rule 9.140(i), reverse Mr. Cote’s sentence, and remand for the trial court to resen-tence Mr. Cote in conformity with the orally pronounced sentence. Mr. Cote need not be present.
Reversed and remanded with directions.
STRINGER, J., concurs.
BLUE, C.J., concurs specially with an opinion.
. This rule was formerly found in Florida Rule of Appellate Procedure 9.140(h).
. See Reese v. State, 763 So. 2d 537 (Fla. 4th DCA 2000); Capre v. State, 773 So. 2d 92 (Fla. 5th DCA 2000); Harvey v. State, 786 So. 2d 595 (Fla. 1st DCA), op. on denial of reh’g, 786 So. 2d 28 (Fla. 1st DCA), review granted, 797 So. 2d 585 (Fla.2001).
. This rule was formerly found in Florida Rule of Appellate Procedure 9.140(d).
BLUE, Chief Judge,
concurring specially.
I agree fully with Judge Fulmer’s well-written and well-reasoned opinion. I write to point out that the failure to preserve error in this case must be the result of ineffective counsel. That being so, this defendant is entitled to have the prejudicial error of an illegal sentence corrected. To fail to do so at this time would require additional circuit court proceedings and possibly an additional appeal to this court. This would not be the best use of judicial resources. Furthermore, in cases like this one that involve short sentences, it is possible that a defendant could complete an illegal sentence before it was corrected. As Maddox points out, the State “has no interest in any defendant serving a sentence that is longer than the sentence authorized by law.” 760 So. 2d at 99.
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Williams v. State, 957 So. 2d 600 (Fla. 2007)…ed in open court; these courts have authorized correction of this type of error in a rule 3.800(a) postconviction proceeding. See Hood v. State, 851 So. 2d 829 (Fla. 1st DCA 2003); Greene v. State, 853 So. 2d 1114 (Fla. 1st DCA 2003); Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003), quashed, 913 So. 2d 544 (Fla.2005); Fitzpatrick, 863 So. 2d at 463; Watts, 790 So. 2d at 1176; Dobarganes v. State, 930 So. 2d 765 (Fla. 3d DCA 2006); Berthiaume, 864 So. 2d at 1258. These courts have also held that a trial court…
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Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004)…tween the oral pronouncement of a sentence and the written judgment. See Pittman v. State, 859 So. 2d 555 (Fla. 5th DCA 2003); Greene v. State, 853 So. 2d 1114 (Fla. 1st DCA 2003); Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003); Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003); Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001). We reverse the appealed order and remand for a determination whether the written sentences conform to the oral pronouncement. If they are the same, the court should attach th…
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England v. State, 879 So. 2d 660 (Fla. 5th DCA 2004)…., concur. . A rule 3.800(a) motion is the proper vehicle to address a discrepancy between the oral pronouncement of a sentence and the written order of sentence. See Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004); see also Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003) (holding that written sentence that provided for probation consecutive to jail time and varied from oral pronouncement that jail time be a condition of probation was illegal sentence). But see Rinderer v. State, 857 So. 2d 955 (Fl…
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
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Gregor v. Gregor, 786 So. 2d 28 (Fla. 1st DCA 2001)
- Harvey v. State, 786 So. 2d 595 (Fla. 1st DCA 2001)
- Reese v. State, 763 So. 2d 537 (Fla. 4th DCA 2000)
- Capre v. State, 773 So. 2d 92 (Fla. 5th DCA 2000)
- Akeem Muhammad v. Fla. Dep't OF Corr., 773 So. 2d 92 (Fla. 1st DCA 2000)