NATHANIEL J. BEARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2010-02-05
No. 5D09-4080
SAWAYA and JACOBUS, JJ., concur.
27 So. 3d 186 Florida District Court of Appeal, Fifth District (2010) Positive Treatment
Cited by 23 cases

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Synopsis

Nathaniel Beard challenges an amended sentence that changed his concurrent prison terms to consecutive, increasing his total sentence from five to eight years. The court reverses and remands because the trial court failed to obtain the sentencing transcript necessary to determine whether a discrepancy exists between the oral pronouncement and written sentence, which would make the amendment illegal.


Holding

The trial court erred in denying the motion without first determining whether the sentencing transcript exists in the record. When a discrepancy exists between an oral pronouncement and written sentence, the oral pronouncement controls. A sentence increase after the defendant begins serving it violates double jeopardy. The movant bears the burden of demonstrating sentencing error, but the sentencing transcript must be part of the record either in the court file or attached to the motion.


Headnotes

[1] A written sentence that conflicts with the oral pronouncement of sentence imposed in open court constitutes an illegal sentence.

[2] When a discrepancy exists between an oral sentence pronouncement and a written judgment, the oral pronouncement controls.

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Key Quotes

“A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence.”

Establishes the fundamental principle that oral pronouncements of sentence control over written sentences when they conflict.

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Facts & Procedural History

Beard was convicted of conspiracy to commit burglary and conspiracy to commit robbery. The trial court initially imposed a five-year sentence on count…

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

Nathaniel Beard was convicted of conspiracy to commit burglary of a dwelling (count 1) and conspiracy to commit robbery (count 2).1 The trial court imposed a five year prison term on count 1, and a concurrent three-year prison term on count 2. Several weeks after sentencing, the trial court entered an amended judgment, changing the prison terms to run consecutively to each other rather than concurrently. The effect of the amended sentence was an increase in Beard’s prison time from five years to eight years.

Beard subsequently filed a motion for clarification, which the trial court properly treated as a motion for relief under Florida Rule of Criminal Procedure 3.800(a). Beard contended that the trial court’s oral pronouncement and original sentence, which imposed concurrent prison terms, and the amended judgment, making the prison terms consecutive, created a discrepancy between the written and oral sentence. However, he did not attach a sentencing transcript to his motion. The trial court denied the motion, concluding that “while the judgment and sentence reflects that the sentence on count 2 was to run concurrent to count 1, a corrected sentence as to count 2 was filed ... re-fleeting that count 2 was to run consecutive to count 1.” Beard appeals, and the State concedes that remand is necessary to determine if there is indeed a discrepancy between the oral and written sentences. The State further concedes that should the sentencing transcript reveal a discrepancy between the oral and written sentences, the oral sentence is controlling.

A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence. Williams v. State, 957 So.2d 600, 603 (Fla.2007); Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). When a discrepancy exists, the oral pronouncement controls over the written. See Williams, 957 So.2d at 603. Once a sentence is imposed and the defendant begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy. See Ashley, 850 So.2d at 1267.

As in all motions filed under rule 3.800(a), the movant bears the burden to demonstrate a sentencing error apparent from the face of the record. In Williams, the supreme court held that

since we have held that the oral pronouncement is, in effect, the controlling disposition, we also conclude that the oral imposition of sentence should at all times be considered a necessary part of the official record if a transcript of the sentencing proceeding is in the court file or, alternatively, a petitioner attaches a certified copy of the sentencing transcript to the rule 3.800(a) motion. In this way the burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record. If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without preju*188dice to the filing of an amended motion properly attaching the sentencing transcript.

957 So.2d at 604. The record before us does not contain the transcript of the sentencing hearing nor was it attached to Beard’s motion or the trial court’s order. Consequently, we must remand the case to the trial court to determine if the transcript is in the record. If it is, the trial court shall either grant the relief that Beard seeks or attach portions of the sentencing transcript that refute Beard’s claim. If the transcript is not in the record, Beard’s motion shall be denied without prejudice to allow him to file an amended motion with the transcript attached. Id.

REVERSED AND REMANDED.

SAWAYA and JACOBUS, JJ., concur.


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Citator

Cited By (13 total)

  • Powell v. State, 223 So. 3d 412 (Fla. 5th DCA 2017)
    …ee that the written sentence contains a scrivener’s error which should be corrected upon remand as to Count II. “A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence.” Beard v. State, 27 So. 3d 186, 187 (Fla. 6th DCA 2010) (citing Williams v. State, 957 So. 2d 600, 603 (Fla. 2007)). “When a discrepancy exists, the oral pronouncement controls over the written.” Id. In this case, the record reveals that the trial court impósed a sentence on Coun…
  • Dewayne R. McLENDON v. State, 58 So. 3d 387 (Fla. 5th DCA 2011)
    …emarked in its order that the “record is of no avail” to McLendon. The court did not, however, attach any portion of it — not the plea agreement, the sentencing hearing, or the judgment and sentence. Nevertheless, as we explained in Beard, v. State, 27 So. 3d 186 (Fla. 5th DCA 2010), in order for a rule 3.800(a) movant to comply with his special duty to demonstrate entitlement to relief on the face of the record, the lack of a transcript of the sentencing hearing is a gap that must be filled by the movant.…
  • Conley v. State, 146 So. 3d 1266 (Fla. 5th DCA 2014)
    …as a prison releasee reoffender. However, the sentence, as written, imposes the 20-year sentence, but makes no mention of the 15-year minimum mandatory sentence. The oral pronouncement of sentence controls over the written sentence. Beard, v. State, 27 So. 3d 186, 187 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So. 2d 600, 603 (Fla.2007)). Nevertheless, “sentencing errors that occur after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b) ... cannot be reviewed by an…

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