KENNETH RICHARD HILLMAN
v.
STATE OF FLORIDA

Fla. 5th DCA | 2020-05-22
No. 19-0468
Maltz, J., Evander, C.J., Lambert, J., Eisnaugle, J.
Florida District Court of Appeal, Fifth District (2020)

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Holding

Convictions are affirmed, but the written sentence must be corrected to conform to the trial court's oral pronouncement regarding concurrent sentences, and the probation order must be clarified to prevent simultaneous incarceration and probation.


Headnotes

[1] When a trial court's written sentence does not conform to its oral pronouncement, the written sentence must be corrected to reflect the oral pronouncement.

[2] Sentencing documents must be clarified to prevent the simultaneous imposition of imprisonment and probation, as probation does not commence until the prison sentence is s…

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Key Quotes

“The written sentence should be corrected to conform to the oral pronouncement.”

Powell v. State, 223 So. 3d 412, 414 (Fla. 5th DCA 2017)

Facts & Procedural History

Kenneth Richard Hillman was convicted on multiple counts. The trial court orally pronounced that Count IV would run concurrently with Count I, but the…

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Opinion of the Court
Remanded. Evander

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

KENNETH RICHARD HILLMAN,

Appellant,

v. Case No. 5D19-468

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed May 22, 2020

Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, Wesley Heidt and Rebecca Rock McGuigan, Assistant Attorneys General, Daytona Beach, for Appellee.

PER CURIAM.

In this Anders1 appeal, we affirm Kenneth Richard Hillman’s convictions. However, we observe that the written sentence does not conform to the trial court’s oral pronouncement.

EVANDER, C.J., LAMBERT and EISNAUGLE, JJ., concur.

Footnotes
1 Anders v. California, 386 U.S. 738 (1967).
2 The trial court orally pronounced Hillman’s sentence on Count IV to run concurrently with the sentence on Count I. The written sentence instead reflects that Count IV will run concurrently with the sentences on Counts III and V. We therefore reverse the written sentence and remand for a corrected sentence that complies with the trial court’s oral pronouncement. See, e.g., Powell v. State, 223 So. 3d 412, 414 (Fla. 5th DCA 2017) (“The written sentence should be corrected to conform to the oral pronouncement.”). In addition, the trial court ordered Hillman to serve five years of probation on Count VI consecutive to all other sentences. The imposition of five years of probation is not error. However, given the unique arrangement of the other sentences, Hillman’s current sentencing documents can be read to require simultaneous incarceration and probation. As a result, we also reverse the order of probation and remand for the lower court to eliminate that possibility. Cf. Nobles v. State, 605 So. 2d 996, 997 (Fla. 2d DCA 1992) (commenting that “reversible error” would result in the imposition of “simultaneous terms of imprisonment and probation”); Johnson v. State, 561 So. 2d 1254, 1255 (Fla. 2d DCA 1990) (“The appellant’s probation will not commence until he serves his prison sentence.” (citations omitted)). AFFIRMED in part; REVERSED in part; and REMANDED.

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