ANTHONY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appeal, the Second District Court of Appeal affirmed Anthony Smith's robbery convictions but remanded to correct a sentencing order discrepancy. The written order incorrectly stated that Smith's sentence for one robbery count would run consecutively with a prior count, when the trial judge had orally pronounced it would run concurrently.
The court affirmed Smith's convictions and sentences but remanded for correction of the written sentencing order to reflect that the sentence for count two shall run concurrently with the sentence for count one, consistent with Judge Luce's oral pronouncement at sentencing.
[1] A trial court's written sentencing order must conform to its oral pronouncement of sentence.
[2] A defendant preserves a sentencing error for appellate review by filing a timely motion to correct the error.
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“Judge Luce intended the five consecutive sentences for the five robbery counts before him to run concurrently with the sentences imposed after Smith's previous trials, including the thirty-year sentence imposed for count one.”
Establishes the trial court's actual intent regarding the sentencing structure that was misreflected in the written order.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith pleaded guilty to five counts of robbery across three cases. He had previously been tried and convicted on two other robbery counts, receiving t…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM. In this Anders1 appeal, counsel for Anthony Smith contends that remand is required to correct several sentencing errors related to Smith’s guilty plea to three counts of robbery in circuit court case number CRC01-03019CFANO. Of the three points Smith raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2),2 we agree with only one: the written sentencing order should be corrected to conform to the trial court’s oral pronouncement. Otherwise, the convictions and sentences are affirmed.
At a sentencing hearing before Judge Luce, Smith pleaded guilty to three counts of robbery in case number CRC01-03019CFANO, one count of robbery in case number CRC01-06072CFANO, and one count of robbery in case number CRC01-06073CFANO. The information in CRC01-03019CFANO had alleged a total of eight counts arising from criminal acts that included robbery at gunpoint. Prior to the sentencing hearing before Judge Luce, Smith was tried and convicted on counts one and eight, for which he received thirty-year sentences to be served concurrently. Also prior to the sentencing hearing, Smith was separately tried and convicted on count five, for which he received a life sentence to be served concurrently with the sentence for count one. Count seven is not at issue in this appeal.
At the sentencing hearing, count six in CRC01-03019CFANO was disposed of when Smith pleaded guilty to petit theft and was sentenced to time served. Five counts of robbery remained: counts two, three, and four in CRC01-03019CFANO; the single count in CRC01-06072CFANO; and the single count in CRC01-06073CFA-NO. Judge Luce proposed to sentence Smith to ten years for each count of robbery to be served consecutively for a total of fifty years. This fifty-year sentence, in turn, would run concurrently with the sentences imposed after Smith’s two previous trials. Smith agreed to this sentence and entered his plea.
The written sentencing order correctly reflects the imposition of a ten-year sentence for each of counts two, three, and four for robbery, and it correctly reflects that the sentence imposed for count four shall run consecutively to the sentence imposed for count three and the sentence imposed for count three shall run consecutively to the sentence imposed for count two. However, it states that the sentence imposed for count two “shall run consecutive with the sentence set forth in count 1.” Judge Luce intended the five consecutive sentences for the five robbery counts before him to run concurrently with the sentences imposed after Smith’s previous trials, including the thirty-year sentence imposed for count one. Therefore, consistent with the trial court’s oral pronouncement, the written sentencing order should be corrected to reflect that the sentence imposed for count two shall run concurrently with the sentence imposed for count one. See Tatum v. State, 805 So. 2d 949, 949 (Fla. 2d DCA 2001). Smith need not be present for this correction of sentence. See Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998).
Convictions affirmed; remanded to correct written sentencing order. FULMER and WALLACE, JJ„ and DANAHY, PAUL W., Senior Judge, concur. . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991).
. It appears from the record that the trial court did not rule on the motion within sixty days. Accordingly, we treat the motion as denied. See O’Neill v. State, 841 So. 2d 629, 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So. 2d 117, 118 (Fla. 2d DCA 2001).
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Seyed R. Miran v. State, 46 So. 3d 186 (Fla. 2d DCA 2010)…when the trial court had no jurisdiction. Accordingly, we reverse the amended judgment and sentence and remand for entry of a new judgment and sentence at a time when the trial court has jurisdiction. Miran need not be present. See Smith v. State, 870 So. 2d 61, 62 (Fla. 2d DCA 2003); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998). Reversed and remanded for further proceedings in accordance with this opinion. DAVIS and MORRIS, JJ., Concur.…
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Nickerson v. State, 927 So. 2d 114 (Fla. 2d DCA 2006)…hundred thousand lawyers. Generally speaking, a defendant need not be present or represented by counsel when the purpose of a resentenc-ing is the performance of a ministerial-type function or the correction of a clerical error. See Smith v. State, 870 So. 2d 61, 62 (Fla. 2d DCA 2003); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998). Here, the trial court mischaracterized the original sentencing error as a clerical error. The court incorrectly stated that Mr. Nickerson’s sentence was illegal becau…
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Kiely v. State, 884 So. 2d 95 (Fla. 2d DCA 2004)…ment. First, Kiely did not have a right to be present at the hearing at which his sentences were corrected because the trial court merely performed the ministerial function of imposing sentences that had already been pronounced. See Smith v. State, 870 So. 2d 61, 63, 2003 WL 22514546, 2003 WL 22514609 (Fla. 2d DCA Nov. 7, 2003); Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998). Second, the issue of whether the trial court erred by not giving reasons for departure sentences as required by section 921.00…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Robbie Jackson v. State, 793 So. 2d 117 (Fla. 2d DCA 2001)
- Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998)
- O'Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- Tatum v. State, 805 So. 2d 949 (Fla. 2d DCA 2001)