RYAN EVANS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Ryan Evans successfully petitioned for relief from ineffective assistance of appellate counsel, arguing that his counsel failed to preserve a sentencing error through the proper procedural motion. The court granted the petition, finding that appellate counsel should have identified and addressed clear discrepancies between the trial court's oral pronouncement and written sentencing documents, and remanded for entry of corrected sentencing documents.
Appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to preserve the sentencing error, and Evans is entitled to relief. The proper remedy is to vacate the sentence and remand with directions to enter amended sentencing documents conforming to the oral pronouncement, rather than remand for a new hearing.
[1] Appellate counsel's failure to file a motion to preserve a sentencing error for review constitutes ineffective assistance of counsel.
[2] A sentencing error, such as discrepancies between an oral pronouncement and written sentencing documents, can be addressed through a motion pursuant to rule 3.800(b).
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Join FLexlaw to unlock all legal intelligence“appellate counsel's failure to file motion to correct illegal sentence so as to preserve sentencing error for review constituted ineffective assistance”
Establishes that failing to preserve sentencing errors through proper motion procedure is grounds for ineffective assistance claim
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Join FLexlaw to unlock all legal intelligenceEvans's appellate counsel raised an issue on direct appeal concerning discrepancies between the trial court's oral pronouncement of sentence, the writ…
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PER CURIAM.
Speaking through the counsel who represented him on direct appeal, Ryan Evans presents a timely claim of ineffective assistance of appellate counsel. We grant the petition, vacate Evans’s sentence, and remand with directions.
On direct appeal, petitioner’s appellate counsel raised an issue concerning discrepancies between the trial court’s oral pronouncement of sentence, the written judgment and sentence, and the written order of probation. The state conceded in its answer brief that the various written sentencing documents did not conform to the oral pronouncement, but argued that any error in this regard had not been preserved for review. In Evans v. State, 895 So. 2d 1292 (Fla. 1st DCA 2005), we acknowledged the noted discrepancies and the fact that they “clearly constitute a sentencing error,” but held that because the issue was not preserved either through a contemporaneous objection or a motion pursuant to rule 3.800(b), the error could not be addressed on direct appeal.
Evans now argues that his appellate counsel was ineffective for failing to preserve the sentencing error by motion pursuant to rule 3.800(b)(2), and we conclude that he has satisfied his burden of demonstrating an entitlement to relief. See Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)(holding that appellate counsel’s failure to file motion to correct illegal sentence so as to preserve sentencing error for review constituted ineffective assistance); Ritter v. State, 885 So. 2d 413 (Fla. 1st DCA 2004)(holding that sentencing error should have been identified and addressed by appellate counsel pursuant to rule 3.800(b)(2)).
As relief, Evans requests that we “direct the trial court to hold the hearing that it should have held had the [rule 3.800(b)(2) ] motion been filed.” Because the state conceded on direct appeal that the trial court’s written orders did not conform with its oral pronouncement of sentence, we find it unnecessary to direct the trial court to now entertain a rule 3.800(b)(2) motion. Instead, we conclude that the proper remedy is to vacate petitioner’s sentence and remand with directions to enter amended sentencing documents conforming with the oral pronouncement.
PETITION GRANTED, SENTENCE VACATED and REMANDED WITH DIRECTIONS.
WOLF, C.J., VAN NORTWICK and BROWNING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ritter v. State, 885 So. 2d 413 (Fla. 1st DCA 2004)
- Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)
- Evans v. State, 895 So. 2d 1292 (Fla. 1st DCA 2005)