JOSEPH J. ZINK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a written sentence designating the defendant as a habitual offender is valid even if the oral pronouncement did not explicitly state the sentences were imposed as habitual offender sentences.
Appellant claimed his written habitual offender sentence for kidnapping and robbery did not match the oral pronouncement because the judge did not exp…
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WARNER, J.
We affirm the order denying appellant’s motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, appellant claimed that his 1990 written habitual offender sentence to concurrent forty-year terms in prison for kidnapping and robbery did not comport with the trial court’s oral pronouncement. The trial court found that appellant was a habitual offender but in pronouncing the concurrent forty-year sentences, the court did not expressly state that the sentences were habitual offender sentences. The written sentence order included that designation. However, the only way that the forty-year sentences could have been legally imposed would have been if they were habitual offender sentences.
We have addressed a case involving similar facts in Scanes v. State, 876 So. 2d 1238 (Fla. 4th DCA 2004), rev. denied, 892 So. 2d 1014 (Fla.2004), also an appeal of an order denying rule 3.800(a) relief. There, as in this case, the trial court made oral findings that the defendant qualified as a habitual offender and imposed enhanced sentences, but did not say the sentences were imposed “as” habitual felony offender sentences. The written sentences included that designation. We refused to conclude that relief was warranted:
Here, it is clear from the plea colloquy, the written habitual felony offender finding, and the written sentence, that the trial court intended to, and did, contemporaneously sentence Scanes as a habitual felony offender. “Magic words” are not necessary to establish what the sentencing court intended.
Id. at 1239-40 (footnote omitted).
We come to the same conclusion here. Under these circumstances the appellant did not even allege what would amount to a variance between the oral pronouncement and the written sentence.
Affirmed.
KLEIN and HAZOURI, JJ., concur.
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Lewis v. State, 16 So. 3d 1021 (Fla. 5th DCA 2009)…t the transcript of the sentencing hearing, together with the written sentences, clearly demonstrate that the trial court intended to, and did, sentence Lewis as an HFO when the original probationary sentences were imposed. See, e.g., Zink v. State, 943 So. 2d 895, 895 (Fla. 4th DCA 2006) (“ ‘Here, it is clear from the plea colloquy, the written habitual felony offender finding, and the written sentence, that the trial court intended to, and did, contemporaneously sentence Scanes as a habitual felony offender…
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Saffold v. State, 959 So. 2d 1247 (Fla. 4th DCA 2007)…fender sentencing. See Scanes v. State, 876 So. 2d 1238 (Fla. 4th DCA 2004) (“magic words” are not necessary to establish what the sentencing court intended when it declared the intent to impose a habitual offender sentence); see also Zink v. State, 943 So. 2d 895 (Fla. 4th DCA 2006). Affirmed. STEVENSON, C.J., WARNER and HAZOURI, JJ., concur.…
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Burch v. State, 4 So. 3d 683 (Fla. 4th DCA 2009)…PER CURIAM. Affirmed. See Zink v. State, 943 So. 2d 895 (Fla. 4th DCA 2006), Scanes v. State, 876 So. 2d 1238 (Fla. 4th DCA), rev. denied 892 So. 2d 1014 (Fla.2004). FARMER, TAYLOR and CIKLIN, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. West, 892 So. 2d 1014 (Fla. 2005)
- Scanes v. State, 876 So. 2d 1238 (Fla. 4th DCA 2004)