GEORGE
v.
STATE OF FLORIDA
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Trixie George appealed the denial of her motion to correct her sentence, claiming the trial court orally pronounced 120 days in jail but the written order incorrectly recorded 220 days. The appellate court reversed and remanded, holding that while the motion was facially insufficient under Rule 3.800(a), it stated a cognizable claim under Rule 3.850 and should be treated as such.
The court held that a discrepancy between an oral pronouncement and written sentence is not cognizable under Rule 3.800(a) when not apparent on the face of the record, as such claims involve factual disputes. However, because Ms. George's motion was filed within the time afforded by Rule 3.850(b) and pleaded a claim cognizable under Rule 3.850, the case should be remanded for the postconviction court to treat the motion as filed under Rule 3.850.
[1] An orally pronounced sentence controls when it differs from a subsequently written sentencing order.
[2] A motion to correct an illegal sentence under Rule 3.800(a) is not cognizable when the discrepancy between the oral and written sentence is not apparent on the face of th…
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Join FLexlaw to unlock all legal intelligence“An orally pronounced sentence is controlling when it differs from the subsequently written sentencing order.”
Establishes the general principle that oral pronouncements of sentence control over written orders when they conflict.
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Join FLexlaw to unlock all legal intelligenceOn September 28, 2023, the trial court revoked Ms. George's probation in two cases and sentenced her to concurrent terms of 220 days in county jail wi…
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DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
TRIXIE GEORGE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-0384
June 7, 2024
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge. PER CURIAM.
Trixie George appeals from the order denying her motion to correct sentence. For the reasons discussed below, we reverse and remand for further proceedings.
On September 28, 2023, the trial court revoked Ms. George's probation imposed in case number 2021-CF-5465 and case number 2021-CF-5467, and sentenced her to concurrent terms of 220 days in the county jail with the requirement that she enter and complete an inhouse drug treatment program.
On January1, 2024, Ms. George filed a motion "to correct sentence" in case number 2021-CF-5465. She cited no rule of procedure or other authority for filing her motion. Her motion alleged that the trial court had orally pronounced a sentence of 120 days in jail, but that her sentence was erroneously recorded as 220 days, theorizing that "[t]he records were entered into the computer incorrectly or the stenographer made a typo." She asked the postconviction court to review the recording of her sentencing hearing and to correct the error. The postconviction court treated Ms. George's motion as filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The court correctly recognized that "[a]n orally pronounced sentence is controlling when it differs from the subsequently written sentencing order." See Barnes v. State, 977 So. 2d 801, 802 (Fla. 2d DCA 2008). However, the court dismissed Ms. George's motion1 because she failed to support her claim with any record evidence, citing Gomez v. State, 137 So. 3d 1037, 1038 (Fla. 3d DCA 2014) ("[A] defendant [may not] claim a sentence is illegal based on an alleged discrepancy between an oral pronouncement and a written sentence . . . without a transcript of the sentencing hearing or other indisputable evidence of record to support the claim." (alterations in original) (quoting Lopez v. State,2 So. 3d 1057, 1059 (Fla. 3d DCA 2009))).
Rule 3.800(a) states, "A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief . . . ." However, when a discrepancy between an oral pronouncement of
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Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010)…sts to the Statewide Prosecutor and $4,008 investigative costs to the Lee County Sheriffs Office[.] The rule 3.800(b)(2) motion preserved the issue of the written sentences conflicting with the trial court’s oral pronouncement. See Barnes v. State, 977 So. 2d 801, 802 (Fla. 2d DCA 2008). The written sentences must conform to the oral pronouncement. See id. As to the first three issues, we direct the trial court to correct the sentencing documents to reflect that (1) Rivera’s sentences on counts 2 and 3 are n…
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Lamont Asberry v. State, 4 So. 3d 1271 (Fla. 1st DCA 2009)…but reverse with directions to the trial court to sentence the Defendant as a prison releasee reoffender in Count I and a habitual felony offender in Count II, in conformance with the court’s oral pronouncement at resentencing. See Barnes v. State, 977 So. 2d 801 (Fla. 2d DCA 2008). The state concedes error. HAWKES, C.J., PADOVANO, and ROBERTS, JJ., concur.…
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Tillman v. State (Fla. 2d DCA 2022)…n lower case 2020- CF-562 indicate that no jail credit had been awarded. 4 During the pendency of this appeal Tillman filed his motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Barnes v. State, 977 So. 2d 801, 802 (Fla. 2d DCA 2008) (holding that by filing a rule 3.800(b) motion to correct sentencing error, the defendant preserved the issue raised on appeal that the written sentence fails to comport with the oral pronouncement); see also Brady v. Sta…
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
- Lopez v. State, 2 So. 3d 1057 (Fla. 3d DCA 2009)
- Nielson v. State, 984 So. 2d 587 (Fla. 2d DCA 2008)
- Gomez v. State, 137 So. 3d 1037 (Fla. 3d DCA 2014)
- Barnes v. State, 977 So. 2d 801 (Fla. 2d DCA 2008)