CLARENCE E. CARLTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the oral pronouncement of a sentence prevails over a written sentence when there is a discrepancy, and the habitual felony offender designation must be stricken from the written sentence to conform to the oral pronouncement.
Clarence Carlton was convicted of aggravated assault and sentenced. The trial court orally pronounced a sentence without a habitual felony offender (H…
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Clarence Carlton challenges his judgment and sentence for aggravated assault. We affirm the length of Carlton’s sentence. However, he argues, and the State correctly concedes, that we must remand this case for the court to strike the habitual felony offender (HFO) designation so that the written sentence comports with the oral pronouncement.
The trial court adjudicated Carlton guilty of aggravated assault, a third-degree felony, and sentenced him to 25.4 months in prison, which is within the statutory guidelines. See §§ 784.021(2), 775.082(3)(d), Fla. Stat. (2010). At the sentencing hearing, the State requested an HFO designation but the court did not find enhancement appropriate. Accordingly, it did not include that designation in its oral pronouncement, but it did include an HFO designation on the written sentence.
Subsequent to filing his notice of appeal, Carlton appropriately filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion, raising the oral versus written discrepancy. The court found the motion facially sufficient and ordered the State to respond. However, the State failed to respond, and the trial court failed to rule on this motion within sixty days; thus, we deem the motion denied. See Shorter v. State, 14 So.3d 1063, 1064 (Fla. 2d DCA 2009).
When there is a discrepancy between the written sentence and the oral pronouncement, the oral pronouncement prevails. See Rivera v. State, 34 So.3d 207, 208 (Fla. 2d DCA 2010). Because the trial court’s oral pronouncement of Carlton’s sentence does not include an HFO designation but his written sentence does, we remand this case with directions for the trial court to correct this scrivener’s error. *1195 See Jackson v. State, 936 So.2d 1172, 1172 (Fla. 1st DCA 2006). Because this is a ministerial act, Carlton’s presence is not required. See id.
Affirmed in part; remanded with instructions.
ALTENBERND and VILLANTI, JJ„ Concur.
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Long v. State, 202 So. 3d 84 (Fla. 2d DCA 2016)…amount of jail credit awarded. See id. II. Written Sentences Do Not Match Oral Sentences Long contends that- the written sentences do not comport with the oral pronouncements and that the written sentences must be corrected. See Carlton v. State, 86 So. 3d 1194, 1194 (Fla. 2d DCA 2012) (recognizing that the written sentence must be corrected to comport with the oral pronouncement when they are inconsistent). Long preserved this issue for appeal in his rule 3.800(b)(2) motion, and the State concedes error.…
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Crowley v. State (Fla. 2d DCA 2019)…of the second degree, for a term of years not exceeding 30"). The HFO designation in the written sentence for count two is clearly a scrivener's error that should be corrected on remand to conform to the oral pronouncement. See Carlton v. State, 86 So. 3d 1194, 1194 (Fla. 2d DCA 2012) ("Because the trial court's oral pronouncement of Carlton's sentence does not include an HFO designation but his written sentence does, we remand this case with directions for the trial court to correct this scrivener's e…
Authorities Cited
- Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010)
- Jackson v. State, 936 So. 2d 1172 (Fla. 1st DCA 2006)
- Shorter v. State, 14 So. 3d 1063 (Fla. 2d DCA 2009)