RONNIE CLEVELAND JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed conviction and sentence without prejudice, noting a scrivener's error in the written judgment regarding concurrent sentencing that cannot be corrected on appeal absent a timely Rule 3.800(b) motion.
A scrivener's error in a written judgment and sentence cannot be corrected on appeal when the issue was not preserved by a timely motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b).
[1] A scrivener's error in a written sentencing judgment that contradicts the trial court's oral pronouncement cannot be corrected on appeal absent preservation through a tim…
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Join FLexlaw to unlock all legal intelligenceThe trial court orally pronounced that Johnson's sentence was to run concurrently with any other sentence he was then serving, but the concurrent desi…
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PER CURIAM.
In this case filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no preserved reversible error apparent from the face of the record. However, we note that the trial court orally pronounced that the sentence imposed in this case was to run concurrently to any other sentence he was then serving, but the concurrent area was not checked off on the written judgment and sentence. Although the written sentence contains a scrivener’s error, this Court cannot direct the trial court to correct the error because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). See Proctor v. State, 901 So. 2d 994, 995 (Fla. 1st DCA 2005) (“[Tjhis court would not be able to address the [scrivener’s] errors because, absent the trial court’s ruling on a rule 3.800(b)(2) motion, these errors were not preserved.”); Aument v. State, 868 So. 2d 682 (Fla. 5th DCA 2004).
Accordingly, we affirm the appellant’s judgment and sentence without prejudice to appellant’s filing a timely motion for postconviction relief to correct the sentencing discrepancy.
AFFIRMED.
VAN NORTWICK, LEWIS, and ROBERTS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sheena Latson v. State, 193 So. 3d 1070 (Fla. 1st DCA 2016)…se it was not preserved either before this appeal by objection in the trial court or. while this appeal was pending by the filing of a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)”); Johnson v. State, 954 So. 2d 702, 702-03 (Fla. 1st DCA 2007) (refusing to’correct failure to'check “concurrent” on written sentence, A scrivener’s error, “because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to Florida…
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Barriera v. State, 196 So. 3d 1265 (Fla. 5th DCA 2016)…"oral pronouncement of sentence controls over the written document.” Gray v. State, 915 So. 2d 254, 256 (Fla. 5th DCA 2005) (citing Ashley v. State, 850 So. 2d 1265, 1268 (Fla.2003)). However, this issue has not been preserved. See Johnson v. State, 954 So. 2d 702, 702-03 (Fla. 1st DCA 2007) (refusing to correct failure to check "concurrent” on written sentence, a scrivener’s error, "because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuánt to Florida…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Proctor v. State, 901 So. 2d 994 (Fla. 1st DCA 2005)
- Aument v. State, 868 So. 2d 682 (Fla. 5th DCA 2004)