TERRY PAUL POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Terry Powell appeals his conviction and sentence for assault, resisting an officer with violence, and battery on a law enforcement officer. The appellate court affirms the judgment and sentence but remands for correction of a scrivener's error in the written sentencing document that conflicts with the oral pronouncement.
The trial court properly imposed drug offender probation on Count III because competent, substantial evidence supported a finding that Powell was a chronic substance abuser, including law enforcement testimony of numerous encounters and evidence he was under the influence of a controlled substance. The written sentence on Count II contains a scrivener's error that must be corrected upon remand to conform to the oral pronouncement of five years' incarceration without drug offender probation.
[1] A trial court's imposition of drug offender probation is reviewed for an abuse of discretion.
[2] A trial court's determination that a defendant qualifies as a chronic substance abuser for drug offender probation may be supported by the testimony of law enforcement of…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence.”
Establishes the legal principle that governs the scrivener's error issue on Count II
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePowell was convicted following a jury trial of three offenses: assault, resisting an officer with violence, and battery on a law enforcement officer. …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Nonviolent Felony cases and more on FLexlaw
Terry Paul Powell appeals from a sentence imposed after he was convicted following a jury trial of three offenses: assault (Count I), resisting an officer with violence (Count II), and battery on a law enforcement officer (Count III). He raises two issues on appeal: first, that the trial court improperly imposed drug offender probation on Count III, as there was insufficient evidence that Powell qualified as a “chronic substance abuser” under section 948.20, Florida Statutes (2015); and second, that his sentence on Count II contains a scrivener’s error. We affirm his judgment and sentence, write to explain our reasoning, and remand for correction of the scrivener’s error on Count II.1 At the sentencing hearing, the trial court sentenced Powell to five years’ incarceration on Count II as a prison releasee reoffen-der, and to three years’ incarceration on Count III, consecutive to the term of imprisonment imposed on Count II, to be followed by two years’ drug offender probation. In conflict with the oral pronouncement, the written sentence on Count II reflects five years’ imprisonment to be followed by two years of drug offender probation.
This Court reviews the trial court’s order imposing drug offender probation for an abuse of discretion. Sutton v. State, 128 So.3d 957, 959 (Fla. 2d DCA 2013) (“[I]t was within the trial judge’s discretion to sentence Sutton to drug offender probation if it appeared to the court *414that Sutton was a ‘chronic substance abuser.’ ”). While this record presents a close call, we conclude that the trial court’s imposition of drag offender probation as to Count III was supported by competent, substantial evidence in the' record. The trial court had before it, among other evidence, the testimony of two law enforcement officers establishing their familiarity with Powell due to numerous encounters with him over several years. Although the officers’ testimony included only a limited factual basis, we cannot say that their testimony was not competent evidence. Further, the arrest affidavit indicated that Powell was under the influence of a controlled substance on the night of the incident. Given the substantial deference due the trial court here, we find no reversible error on this point.
We agree 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 Count II of five years’ incarceration, making no mention of drag offender probation on this count. The written sentence should be corrected to conform to the oral pronouncement.
AFFIRMED; REMANDED for correction of scrivener’s 'error.
' COHEN, C.J., BERGER and EISNAUGLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Darrius Montgomery v. State, 230 So. 3d 1256 (Fla. 5th DCA 2017)…to revise the statutes to clarify its intent. . I recognize that the opinion in Burrows indicates that the State conceded error. In my view, the State should not have done so, and we should have rejected the State’s concession. See Powell v. State, 223 So. 3d 412 (Fla. 5th DCA 2017) (quoting Perry v. State, 808 [*1264] So. 2d 268, 268 (Fla. 1st DCA 2002)). Although the State initially conceded error in this case, it now correctly recognizes that Appellant's sentence does not violate Graham. . Horsley v. Sta…
-
Haar v. State, 295 So. 3d 327 (Fla. 5th DCA 2020)…crivener’s error when doing so would result in substantive error. The concurring opinion observes that the State has conceded error and did not cross-appeal. However, we are not bound by the State’s improper concession of error, see Powell v. State, 223 So. 3d 412, 413 n.1 (Fla. 5th DCA 2017) (“A confession of error . . . is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state.” (citations omitted)), and the State was without…
-
Miller v. State, 275 So. 3d 688 (Fla. 2d DCA 2019)
Previewing 3 of 7 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)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)
- Beard v. State, 27 So. 3d 186 (Fla. 5th DCA 2010)
- Sutton v. State, 128 So. 3d 957 (Fla. 2d DCA 2013)