PAUL R. BERTHIAUME, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct a sentence can be used to address discrepancies between the oral pronouncement and the written judgment, even if the sentence itself is not illegal.
[1] A motion to correct an illegal sentence may be used to address discrepancies between the oral pronouncement of a sentence and the written judgment.
[2] A trial court denying a motion to correct an illegal sentence must attach portions of the record that refute the defendant's allegations.
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Join FLexlaw to unlock all legal intelligenceBerthiaume alleged his written sentences did not reflect the oral pronouncement that they would be concurrent with a Volusia County case. The trial co…
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GRIFFIN, J.
Paul R. Berthiaume [“Berthiaume”] appeals the summary denial of his motion filed pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Berthiaume alleges that when he was sentenced to concurrent terms of nine years as an habitual felony offender in Orange County case nos. 1990-CF-2400, 1990-CF-5285, 1990-CF-6134, 1990-CF-7507 and 1990-CF-8973, the trial court orally pronounced that his sentences would also be concurrent with the sentence in Volusia County case no. 90-3704, but the written sentence did not reflect that ruling. Berthiaume alleges that the error is apparent on the face of the record, from the plea agreement and the sentencing colloquy.
The trial court denied relief because there was no case numbered 90-3704 in Orange County involving Berthiaume. The trial court attached to its order copies of the sentences; however, the court did not attach any portion of the sentencing transcript to refute Berthiaume’s allegation and show that the court did not orally pronounce that his sentences were to run concurrent with a case numbered 90-3704.
The State was ordered to file a response. The State confirmed that case no. 90-3704 is a Volusia County case involving Berthiaume. The State argues that Berthiaume’s claim is not cognizable under rule 3.800(a), because his sentences are not illegal, but this court and others have authorized the use of rule 3.800(a) to address discrepancies between 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 the relevant portions of the record to refute Berthiaume’s claim. If they are different, the court should correct the sentence.
REVERSED and REMANDED.
SHARP, W., and PLEUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Williams v. State, 957 So. 2d 600 (Fla. 2007)…cript of the sentencing proceedings. On appeal, the Fourth District Court of Appeal affirmed the trial court’s denial of Williams’ motion and certified conflict with Fitzpatrick v. State, 863 So. 2d 462 (Fla. 1st DCA 2004), and Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004). Williams, 913 So. 2d at 1239. The district court further concluded that “a mere allegation of a difference between the oral pronouncement and the written judgment is insufficient to comply with [rule 3.800(a)]” and certified con…
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Wilmann Renaud v. State, 926 So. 2d 1241 (Fla. 2006)…risdiction to review Renaud v. State, 901 So. 2d 1032 (Fla. 4th DCA 2005), a decision of the Fourth District Court of Appeal certifying conflict with the decisions in Fitzpatrick v. State, 863 So. 2d 462 (Fla. 1st DCA 2004), and Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004). See art. V, § 3(b)(4), Fla. Const. Upon further consideration, we have now determined that jurisdiction was improvidently granted. A requirement for relief under Florida Rule of Criminal Procedure 3.800(a) is “that the court rec…
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Antoine Museau v. State, 953 So. 2d 40 (Fla. 4th DCA 2007)…la. 4th DCA 2005), review dismissed, 926 So. 2d 1241 (Fla.2006); see also Covell v. State, 891 So. 2d 1132 (Fla. 4th DCA 2005). As in Wilbon, we certify conflict with Fitzpatrick v. State, 863 So. 2d 462 (Fla. 1st DCA 2004), and Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004). See 944 So. 2d at 397 (on rehearing). STEVENSON, C.J., GROSS and TAYLOR, JJ., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001)
- Selena Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003)
- Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003)
- Greene v. State, 853 So. 2d 1114 (Fla. 1st DCA 2003)
- Andre' Pittman v. State, 859 So. 2d 555 (Fla. 5th DCA 2003)