JUSTIN MATTHEW DUCKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appellate review, the First District Court of Appeal affirmed Ducker's convictions and sentences but remanded for correction of two scrivener's errors: the judgment incorrectly reflected count 4 as a first degree misdemeanor when the trial court and jury found it to be a second degree misdemeanor, and the written judgment failed to reflect the trial court's oral designations of habitual felony offender and prison releasee reoffender.
The court affirmed the convictions and sentences but remanded with directions for the trial court to correct two scrivener's errors: (1) correct count 4 to reflect a second degree misdemeanor to match the jury verdict and oral judgment of acquittal as to the higher offense; and (2) correct the written judgment to conform to the oral pronouncement of habitual felony offender and prison releasee reoffender designations.
[1] A scrivener's error is a written clerical error that is not the result of a judicial determination or error.
[2] A defendant need not be present at resentencing if the error to be corrected is purely ministerial or clerical and involves no exercise of the court's discretion.
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Join FLexlaw to unlock all legal intelligence“the court granted Appellant's motion for judgment of acquittal to the extent it reduced the offense of criminal mischief (count 4) from a first degree misdemeanor to a second degree misdemeanor”
Establishes that the trial court orally reduced count 4 to a second degree misdemeanor, which was inconsistent with the written judgment
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Join FLexlaw to unlock all legal intelligenceAt trial, the court granted Appellant's motion for judgment of acquittal reducing criminal mischief (count 4) from a first degree misdemeanor to a sec…
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This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record, we affirm Appellant’s convictions and sentences, but we remand with directions to correct two apparent scrivener’s errors in the judgment.
First, at trial, the court granted Appellant’s motion for judgment of acquittal to the extent it reduced the offense of criminal mischief (count 4) from a first degree misdemeanor to a second degree misdemeanor. The jury also specifically found Appellant guilty of criminal mischief less than $200, which is a second degree misdemeanor. However, the written judgment reflects a conviction for count 4 as originally charged: a first degree misdemeanor. Accordingly, on remand, the trial court shall correct the judgment to reflect that count 4 is a second degree misdemeanor. See Clark v. State, 85 So.3d 1190 (Fla. 1st DCA 2012) (affirming Anders appeal but remanding with directions to correct con*1096viction in judgment); see also Bryant v. State, 124 So.3d 256 (Fla. 1st DCA 2013) (affirming Anders appeal but remanding for correction of scrivener’s error in sentence).
Second, at the sentencing hearing, the trial court orally designated Appellant as a habitual felony offender and prison releas-ee reoffender. However, the written judgment in the record on appeal does not reflect these designations. Accordingly, on remand, the trial court shall correct the júdgment to conform to the oral pronouncement. See Bryant, 124 So.3d at 257 (remanding for written judgment to conform to oral pronouncement); see also Marshall v. State, 78 So.3d 72 (Fla. 4th DCA 2012) (stating that if there is no ambiguity in oral pronouncement, sentencing order must be corrected to reflect oral pronouncement).
Appellant need not be present for these ministerial corrections to the judgment. See Walton v. State, 106 So.3d 522, 529 (Fla. 1st DCA 2013),(“[A].defendant need not.be present at resentencing if the error to be corrected is ‘purely ministerial’ or clerical, and involves no exercise, of. the court’s discretion.”).
AFFIRMED; REMANDED with instructions. ■
WETHERELL, RAY, and BILBREY, JJ., concur.
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Dallas v. State, 208 So. 3d 335 (Fla. 1st DCA 2017)…on, the appellant must be present and represented by counsel. See Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014) (explaining that where the trial court has discretion regarding sentence imposition a defendant must be present); cf. Pucker v. State, 197 So. 3d 1095, 1096 (Fla. 1st DCA 2016) (Anders appeal in which the court stated that upon remand the appellant need not be present because the court’s actions of correcting scrivener’s errors would be purely ministerial). The state [*336] may choose to again att…
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Barge v. State (Fla. 1st DCA 2019)…suant to Anders v. California, 386 U.S. 738 (1967). Having reviewed the record, we affirm the Appellant’s convictions and sentences, but we remand with directions to correct a scrivener’s error in the judgment and sentence. See Ducker v. State, 197 So. 3d 1095, 1095-96 (Fla. 1st DCA 2016) (affirming judgment and sentence but remanding for correction of unpreserved scrivener’s errors). The judgment and sentence inadvertently omits the conviction and sentence for count three. The Appellant need not be…
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Simon v. State (Fla. 2d DCA 2019)…the orally pronounced PRR designation. "Consequently, remand is required to ensure that the written sentence comports with the trial court's oral pronouncement." Devlin v. State, 224 So. 3d 803, 804 (Fla. 2d DCA 2017); see, e.g., Ducker v. State, 197 So. 3d 1095, 1096 (Fla. 1st DCA 2016) ("[A]t the sentencing hearing, the trial court orally designated Appellant as a habitual felony offender and prison releasee reoffender. However, the written judgment in the record on appeal does not reflect these designat…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)
- Marshall v. State, 78 So. 3d 72 (Fla. 4th DCA 2012)
- Bryant v. State, 124 So. 3d 256 (Fla. 1st DCA 2013)
- Clark v. State, 85 So. 3d 1190 (Fla. 1st DCA 2012)
- Townsend v. State, 85 So. 3d 1190 (Fla. 1st DCA 2012)