JOSHALYNNE D. HIGHBERGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the written sentence for count three because the trial court's oral pronouncement of no minimum mandatory term was clear and unambiguous, requiring the written sentence to conform to the oral pronouncement.
A trial court's clear oral pronouncement of no minimum mandatory term for a count must be followed, and the written sentence must be modified to conform to that oral pronouncement.
[1] When a trial court's oral pronouncement of sentence conflicts with the written sentence, the clear and unambiguous oral pronouncement controls and the written sentence mu…
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Trial court's oral pronouncement regarding count three at sentencing
Highberger was convicted on multiple counts. The trial court orally imposed a fifteen-year sentence for count three and stated there is no minimum man…
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ORFINGER, J.
In this Anders1 appeal, the State was ordered to file an answer brief, addressing the conflict between the written and oral sentence regarding count three of the information. The State concedes that the trial court orally imposed a fifteen-year sentence for count three, and stated “[tjhere is no minimum mandatory;” how ever, the written sentence imposes a ten-year minimum mandatory term. Highber-ger preserved the error by filing a timely motion pursuant to Florida Rule Criminal Procedure 3.800(b)(2), but the trial court failed to rule on the motion within the required time. As a result, the motion was deemed denied. Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000).
Although the State argues that it is unclear if the trial court intended to impose a minimum mandatory term for count three, we conclude that the trial court’s oral pronouncement that “there is no minimum mandatory” as to count three is clear and unambiguous. Accordingly, we reverse the sentence imposed for count three and remand this matter to the trial court with instructions that the written sentence be modified to conform with the oral pronouncement. We affirm the convictions and sentences regarding counts one, two, four and five. Highberger does not need to be present at resentencing.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
PLEUS and PALMER, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Aument v. State, 868 So. 2d 682 (Fla. 5th DCA 2004)…obation. We are unable to direct the trial court to correct that error as the issue was not preserved for review by the filing of a timely motion to correct sentence pursuant to Florida Rule Criminal Procedure 3.800(b). See e.g. Highberger v. State, 863 So. 2d 1256 (Fla. 5th DCA 2004); Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003). Accordingly, we affirm the defendant’s convictions and sentences without prejudice to file a timely postconviction motion to correct the sentencing discrepancy. AFFIRMED.…
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Torr R. Nelson v. State, 987 So. 2d 1261 (Fla. 5th DCA 2008)…nts of battery on a person sixty-five years old or older. As to those two charges, we reverse and remand with directions that the PRR designation be stricken. Nelson need not be present at the time the sentence is corrected. See Highberger v. State, 863 So. 2d 1256, 1257 (Fla. 5th DCA 2004). AFFIRMED in part; REVERSED in part; and REMANDED with directions. GRIFFIN and MONACO, JJ., concur.…
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Johnson v. State, 987 So. 2d 1232 (Fla. 5th DCA 2008)…tten sentences be conformed to the court’s oral pronouncement. In all other respects, Johnson’s convictions and sentences are affirmed. It is not necessary for Appellant to be present when the sentences are corrected. See, e.g., Highberger v. State, 863 So. 2d 1256, 1257 (Fla. 5th DCA 2004). AFFIRMED in part; REVERSED in part. GRIFFIN and MONACO, JJ., concur.…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000)