DONNA MARIE FONSECA
v.
STATE OF FLORIDA

Fla. 5th DCA | 2022-09-16
No. 21-2479
Florida District Court of Appeal, Fifth District (2022)

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Holding

An amended judgment and sentence must be entered nunc pro tunc when a trial court orally grants a motion to correct sentencing error but fails to document the correction in written form.

Headnotes

[1] When a trial court grants a motion to correct sentencing error orally but fails to enter an amended written judgment, remand is appropriate to ensure proper documentation…

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Facts & Procedural History

Fonseca received an orally announced three-year prison sentence on two counts, but the second count was a misdemeanor punishable by only up to one yea…

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Topics
Anders Appeal Motion To Correct Sentencing Error Motion To Correct Sentence Nunc Pro Tunc Order

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Opinion of the Court

PER CURIAM.

In this Anders appeal, we affirm Fonseca's judgment and sentence. Fonseca had filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to correct a sentence, which imposed a sentence of three years in prison for two counts in 2021-CF-988-A. That was in fact the sentence orally announced by the court following acceptance of the plea. However, count 2 of that information was a misdemeanor punishable by only up to one year in the county jail.

A hearing was held on Fonseca's motion, and the trial court orally granted that motion.1 However, it appears that no amended judgment and sentence was entered. Therefore, as requested by Fonseca in her second motion to correct sentencing error, we remand for the trial court to enter a formal amended written judgment and sentence nunc pro tunc to September 20, 2021, to resolve the conflict in the two written judgments. See Lopez-Vasquez v. State, 966 So. 2d 996, 997 (Fla. 5th DCA 2007) (affirming conviction and sentence in Anders appeal but remanding for entry of an

Footnotes
1 One judgment and sentence seems to reflect the court's attempt to sentence Fonseca to three years in the Department of Corrections on what by process of elimination would be count 1, with time served on count 2. A second judgment and sentence, entered the same day, reflects only a sentence on the felony Possession of Methamphetamine count. It appears that at the hearing on the motion to correct sentence the State, defense, and court recognized an error in the paperwork and attempted to correct same. amended judgment). On remand, the trial court is also directed to correct Fonseca's scoresheet if necessary. AFFIRMED and REMANDED with Instructions. COHEN, WALLIS and NARDELLA, JJ., concur.

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