CHRISTOPHER COMTOIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Comtois appeals his conviction for lewd and lascivious exhibition, challenging a discrepancy between his orally pronounced sentence (13 years, 9 months) and the written sentencing order (14 years, 9 months). The court held that the orally pronounced sentence controls and remanded for correction of the written order.
The orally pronounced sentence of thirteen years, nine months must prevail over the written sentencing order of fourteen years, nine months. A sentencing court cannot increase a legal and unambiguous sentence after the pronouncement becomes final, even if based on the judge's mistake.
[1] A trial court's oral pronouncement of a sentence in open court becomes final when the sentencing hearing concludes.
[2] A written sentencing order must conform to the orally pronounced sentence.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.700(b) requires the "pronouncement" in open court of the sentence to be imposed, and the final disposition thereafter to be entered in the minutes of the court. The "pronouncement" becomes final when the sentencing hearing ends.”
Establishes the controlling procedural rule that oral pronouncements are final once the sentencing hearing concludes.
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Join FLexlaw to unlock all legal intelligenceComtois was convicted of lewd and lascivious exhibition. At sentencing, the trial judge orally pronounced a sentence of thirteen years, nine months in…
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MONACO, J.
The appellant, Christopher Comtois,' who was convicted of a single count of lewd and lascivious exhibition, appeals his judgment and sentence. Although he raises a number of issues, only one, involving a discrepancy between his orally pronounced and written sentence, is meritorious.
When Mr. Comtois was being sentenced, the trial judge said at the conclusion of the hearing that the sentence imposed would consist of thirteen years, nine months in prison, less time served, followed by probation, and including certain other uncontested terms and conditions. In the written sentencing order that followed, however, the court indicated that the sentence would be fourteen years, nine months in prison, less time served, followed by probation. At a subsequent hearing Mr. Comtois asked the court to correct his sentence to that originally pronounced.
The trial court declined, indicating essentially that his intent had been to sentence Mr. Comtois to the longest possible sentence, except for a short periqd of community based supervision, and that he simply misspoke at the sentencing hearing. While we understand the miscalculation, we conclude that the sentence as originally pronounced is the one that must be imposed.
Florida Rule of Criminal Procedure 3.700(b) requires the “pronouncement” in open court of the sentence to be imposed, and the final disposition thereafter to be entered in the minutes of the court. The “pronouncement” becomes final when the sentencing hearing ends. See Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982).
See also Hickman v. State, 606 So. 2d 435, 437 (Fla. 2d DCA 1992).
While Rule 3.800(a), Florida Rules of Criminal Procedure, authorizes a sentencing court, to correct an illegal sentence, the rule does not permit the court to increase a legal and unambiguous sentence1 after the pronouncement becomes final, even if the orally pronounced sentence was based on mistake. See Farber. Here, the sentence was neither ambiguous, nor illegal. Since we find no ambiguity or illegality in the oral pronouncement, and since it is clear that the written sentencing order was prepared well after the conclusion of the sentencing hearing, we agree with Mr.- Com-tois that the. orally pronounced sentence must prevail. Accordingly, as the written sentence for Mr. Comtois must conform to the oral pronouncement, we remand this case to the trial court for correction of the written sentence to reflect an incarcerative sentence of thirteen years, nine months, plus probation, and the other terms and conditions that were orally pronounced by the court at the sentencing hearing. In all other respects the judgment and sentence is affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED.
SAWAYA, C.J. and PETERSON, J., concur. . In some instances an ambiguous oral pronouncement of a sentence may be revisited in order to make the sentence clear. See, e.g., Jackson v. State, 615 So. 2d 850 (Fla. 2d DCA 1993); Nobles v. State, 605 So. 2d 996 (Fla. 2d DCA 1992).
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Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006)…years on Count I, five years on Count II, and thirty years on Count III — all sentences to run consecutively. Significant to our analysis is that the trial judge’s originally pronounced sentence was neither ambiguous nor illegal. Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005). We find our supreme court’s decision in Ashley to be controlling. In Ashley, the defendant was charged with possession of a firearm by a convicted felon. Prior to trial, the state filed a notice of intent to classify Ashley as…
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Tywan Obara v. State, 958 So. 2d 1019 (Fla. 5th DCA 2007)…rt time period between the conclusion of the initial sentencing proceeding and the trial court’s decision to reject the previously accepted plea. Id. at 860. Our decisions in Colon v. State, 905 So. 2d 1000 (Fla. 5th DCA 2005), and Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005), are consistent with Troupe,3 Mr. Obara is also entitled to the benefit of his originally imposed sentence because his conduct, while unlawful, did not violate the express conditions of his written plea agreement. “A plea agreem…
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Chapman v. State, 14 So. 3d 273 (Fla. 5th DCA 2009)…e and defendant’s understanding, that the sentence in the instant case included five years of probation.” Chapman contends that Ashley v. State, 850 So. 2d 1265 (Fla.2003); Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006); and Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005) require reversal in this case. We disagree. Those cases stand for the proposition that when a trial court orally pronounces a legal and tmambiguous sentence, and the sentencing hearing has been concluded, double jeopardy principl…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)
- Jackson v. State, 615 So. 2d 850 (Fla. 2d DCA 1993)
- Nobles v. State, 605 So. 2d 996 (Fla. 2d DCA 1992)
- Hickman v. State, 606 So. 2d 435 (Fla. 2d DCA 1992)
- Ariko v. Nicholson, 606 So. 2d 435 (Fla. 5th DCA 1992)