MUSTAQ SABRY KHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Khan appeals the revocation of his probation and thirty-month sentence to the Department of Corrections. The court affirmed the order but noted that the written sentencing order contained a finding not made orally, creating a non-conformity that was not preserved for appeal.
The non-conformity between the written order and oral pronouncement was not preserved for appellate review because Appellant failed to make a contemporaneous objection or file a Rule 3.800(b)(2) motion before filing his initial brief. Therefore, the issue cannot be reviewed on direct appeal.
[1] A discrepancy between a trial court's oral sentencing pronouncement and the written judgment and sentence is an unpreserved sentencing error on direct appeal unless it is…
[2] Sentencing errors, including written judgments that deviate from oral pronouncements, are subject to Rule 3.800(b)(2) for preservation.
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Join FLexlaw to unlock all legal intelligence“Claims that the written judgment and sentence do not conform to the oral pronouncement must be preserved either with a contemporaneous objection, if possible, or by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion before filing the initial brief.”
Establishes the procedural requirement for preserving sentencing non-conformity errors for appellate review
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Khan had his probation revoked and was sentenced to thirty months in the Department of Corrections. The trial court's written sentencing ord…
The full statement of facts, procedural history, and disposition for this case are member content.
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Appellant appeals the order revoking his probation and sentencing him to thirty months in the Department of Corrections. We affirm as to all issues raised, but note that the sentencing order contains a finding that Appellant was a danger to the community under section 948.06(8)(e)2.a., Florida Statutes (2013). However, the trial court failed to orally make this finding, so the written sentencing order does not conform to the oral pronouncement of sentence. Unfortunately, Appellant did not object or raise this error in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). As the court explained in Daniels v. State, 118 So.3d 996, 997 (Fla. 1st DCA 2013):
The problem is, however, that we cannot review the appellant’s unpreserved sentencing error claims on the merits. See Craighead v. State, 36 So.3d 893 (Fla. 1st DCA 2010) (quoting Jackson v. State, 983 So.2d 562, 569 (Fla.2008)). Claims that the written judgment and sentence do not conform to the oral pronouncement must be preserved either with a contemporaneous objection, if possible, or by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion before filing the initial brief. See Jackson, 983 So.2d at 572 (noting that sentencing errors subject to Rule 3.800(b)(2) include written orders that deviate from the oral pronouncement); Evans v. State, 895 So.2d 1292, 1292-93 (Fla. 1st DCA 2005) (holding that absent contemporaneous objection or Rule 3.800(b)(2) motion, error in non-conforming written sentence and order of probation to oral pronouncement was not preserved for direct appeal). Burney v. State, 114 So.3d 455 (Fla. 4th DCA 2013) (holding that absent contemporaneous objection or Rule 3.800(b)(2) motion, error in non-conforming written revocation of probation to oral pronouncement was unpreserved for direct appeal, citing Evans, 895 So.2d 1292). In this case, the appellant concedes the issue was not preserved during sentencing by contemporaneous objection. Likewise, neither the appellant nor the state filed a notice of a pending Rule 3.800(b)(2) motion in this Court prior to the appellant’s filing his initial brief.
Accordingly, we affirm the order under review without prejudice to Appellant’s ability to raise the sentencing error in an appropriate post-conviction motion. Id. at 998.
AFFIRMED without prejudice.
SAWAYA, EVANDER and COHEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- Elbert N. Daniels v. State, 118 So. 3d 996 (Fla. 1st DCA 2013)
- Evans v. State, 895 So. 2d 1292 (Fla. 1st DCA 2005)
- Burney v. State, 114 So. 3d 455 (Fla. 4th DCA 2013)
- Tarvaris Kelly v. State, 36 So. 3d 893 (Fla. 1st DCA 2010)
- Craighead v. State, 36 So. 3d 893 (Fla. 1st DCA 2010)