MALCOLM HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Malcolm Hall appealed his conviction for aggravated child abuse and the revocation of his probation from a 2004 case. The court affirmed his conviction and probation revocation but found a sentencing error where the written judgment failed to conform to the trial court's oral pronouncement of sentence on certain counts, requiring remand for correction.
The court found no abuse of discretion regarding the expert testimony and affirmed the conviction and probation revocation. However, the court found merit in the sentencing error claim because the written judgment failed to conform to the oral pronouncement on counts other than burglary, requiring remand for correction.
[1] A trial court abuses its discretion when it allows expert testimony that is not relevant or helpful to the jury.
[2] A written sentencing order must conform to the trial court's oral pronouncement of sentence.
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Join FLexlaw to unlock all legal intelligence“it is well settled that the trial court's oral pronouncement of sentence controls over the written sentencing order”
Establishes the fundamental principle that oral sentences take precedence over written orders when they conflict
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Join FLexlaw to unlock all legal intelligenceHall was on probation for a 2004 case involving burglary, dealing in stolen property, defrauding a pawnbroker, and criminal use of personal identifica…
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We previously consolidated these cases for briefing purposes. We now consolidate them for disposition on the merits.
In case number 1D11-4467, Appellant seeks review of his judgment and sentence for aggravated child abuse. In case number 1D11-4692, Appellant seeks review of the order revoking his probation based on this new law offense as well as the resulting judgment and sentence in the 2004 case for which he was on probation.
We find no merit in Appellant’s claim that the trial court abused its discretion in allowing Dr. Moorer to provide expert testimony concerning the child’s head injury, and we affirm Appellant’s conviction for aggravated child abuse and the revocation of his probation based on this new law offense without further comment. We do, however, find merit in Appellant’s sentencing error claim.
At the time of the offense giving rise to these cases, Appellant was on probation for a 2004 case involving three counts of burglary of a dwelling, three counts of dealing in stolen property, two counts of defrauding a pawnbroker, and one count of *644criminal use of personal identification. At the sentencing hearing in these cases, the trial court revoked Appellant’s probation on all of the counts in the 2004 case and orally sentenced him to 15 years in prison on the burglary counts and to time served on the remaining counts. The revocation order and the judgment and sentence in the 2004 case conformed to the oral pronouncement on the burglary counts, but sentenced Appellant to 5 years in prison on the remaining counts.
While this appeal was pending and before the initial brief was filed, Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to correct the discrepancy between the oral pronouncement and the written sentence. The motion was filed on March 16, 2012, and on May 25, 2012, the trial court clerk filed a supplemental record with this court certifying that no order had been entered on the motion. The State asserted in its answer brief that this issue is moot because “the trial court entered an order on June 20, 2011[sic] granting Appellant’s motion to correct sentencing error.” The record contains no such order.
Rule 3.800(b)(2)(B) provides that a motion to correct sentencing error filed while an appeal is pending is to be resolved in accordance with the procedures in subdivision (b)(1)(B) of the rule. That subdivision requires the trial court to file an order on the motion within 60 days and provides that the motion is deemed denied if no order is filed within that timeframe. See Fla. R.Crim. P. 3.800(b)(1)(B) (“If no order is filed within 60 days, the motion shall be considered denied.”).
Here, the 60-day period expired on May 15, 2012. The trial court clerk certified that no order was entered on the motion prior to that date and, thus, the motion was deemed denied. Moreover, even if the State was correct that the trial court entered an order granting the motion on June 20, 2012, that order was a nullity because it was entered after the 60-day period in rule 3.800(b)(1)(B). See Calidonio v. State, 951 So.2d 87, 88 (Fla. 1st DCA 2007) (“[A] trial court has no jurisdiction to rule on a rule 3.800(b) motion after 60 days and an order filed more than 60 days after the motion was filed is a nullity.”). Thus, the sentencing error claim framed by Appellant’s rule 3.800(b)(2) motion is properly before this court and is not moot.
On the merits of the claim, it is well settled that the trial court’s oral pronouncement of sentence controls over the written sentencing order. See Williams v. State, 957 So.2d 600, 603 (Fla.2007). Here, the order revoking Appellant’s probation and the resulting judgment and sentence in the 2004 case conformed to the oral pronouncement of sentence with respect to the burglary counts, but not the remaining counts. Accordingly, in case number 1D11-4692, we reverse the sentences imposed on all counts other than the burglary counts and remand with directions that the revocation order and the judgment and sentence in the 2004 case be corrected to conform to the oral pronouncement on the other counts. We affirm the revocation order and the judgment and sentence in the 2004 case in all other respects, and we also affirm the judgment and sentence in case number 1D11-4467.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.
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Bicking v. State, 200 So. 3d 799 (Fla. 1st DCA 2016)…t and sentence consistent with this opinion. LEWIS, BILBREY, and WINOKUR, JJ., concur. . Given that the trial court did not enter an order on the motion to correct sentencing error within sixty days, the motion is deemed denied. See Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013) (citing Florida Rule of Criminal Procedure 3.800(b)).…
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Williams v. State (Fla. 1st DCA 2020)…hat count three was not included in the plea agreement or order revoking probation, nor was it discussed at the plea hearing. Notably, the trial court did not orally adjudicate Appellant guilty or sentence Appellant on this count. See Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013) (“[I]t is well settled that the trial court’s oral pronouncement of sentence controls over the written sentencing order.”). On remand, the trial court shall correct the written judgment, removing count three. Appellant nee…
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LeVar Shelverick Smith v. State (Fla. 1st DCA 2023)…administrative probation in this case, but instead applied to a related case also before the court at that time. “[I]t is well settled that the trial court’s oral pronouncement of sentence controls over the written sentencing order.” Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013). On remand, the lower tribunal shall correct these scrivener’s errors in the judgment and sentence and the order of probation, consistent with this opinion. Appellant need not be present for these ministerial corrections. S…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 957 So. 2d 600 (Fla. 2007)
- Calidonio v. State, 951 So. 2d 87 (Fla. 1st DCA 2007)