ROBERT MICHAEL BROOKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed but remanded for resentencing to correct a clerical error adjudicating appellant on a count he was not charged with, to specify credit time as required by statute, and to remove the improper "at hard labor" language.
A judgment must be corrected on remand when a clerical error results in adjudication and sentencing on a count not charged, when credit time is not specified as required by statute, and when the sentence improperly includes "at hard labor" language unsupported by state law.
[1] A clerical error in a written judgment that adjudicates a defendant guilty on a count not charged requires correction on remand even when the trial judge's oral pronounce…
[2] A sentencing judgment must specifically set forth the period of credit time to be allowed as required by statute.
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Join FLexlaw to unlock all legal intelligenceAppellant and his brother were jointly charged in a four-count information; appellant was charged with possession of a firearm by a convicted felon an…
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PER CURIAM.
The judgment appealed is affirmed, but this case is remanded for resentencing of appellant. Appellant and his brother William Glen Brooker were jointly charged in a four-count information: count 1 charged William , with possession of a firearm by a convicted felon; count 2 charged appellant with possession of a firearm by a convicted felon; and each of counts 3 and 4 charged both brothers with grand larceny. At the same plea hearing both appellant and his brother pled guilty as charged to all of the charges against them and were given five-year concurrent sentences on all applicable counts. It is clear from the plea hearing transcript that the trial judge understood which counts applied to each brother, but a clerical error occurred in the entry of the written judgment and sentence, resulting in appellant’s being adjudicated guilty and sentenced on count 1, with which he was not charged. This should be corrected on remand.
In addition, the present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing.
BOARDMAN, Acting C. J., and SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Jones v. State, 498 So. 2d 1359 (Fla. 2d DCA 1986)…in Case No. 82-1124F do not-specifically state credit for time served. We remand this case with instructions that the court specifically set forth the amount of jail credit for all sentences imposed. § 921.161(1), Fla.Stat. (1985). Brooker v. State, 362 So. 2d 697 (Fla. 2d DCA 1978). Conviction affirmed; sentence vacated in part, and remanded with instructions. GRIMES, A.C.J., and HALL, J., concur. RYDER, J., specially concurs.…
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Crawford v. State, 406 So. 2d 1234 (Fla. 2d DCA 1981)…the judgment and sentence of the trial court. However, this cause is remanded for determination of the amount of credit for time served, if any, which appellant should be given. Shemwell v. State, 391 So. 2d 218 (Fla.2d DCA 1980); Brooker v. State, 362 So. 2d 697 (Fla.2d DCA 1978). Appellant need not be present for this purpose. GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.…
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Small v. State, 371 So. 2d 532 (Fla. 3d DCA 1979)…nded pursuant to this court’s mandate regarding point one, the trial court shall additionally determine what credit shall be afforded defendant for time served prior to sentencing. Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975); Brooker v. State, 362 So. 2d 697 (Fla. 2d DCA 1978); Section 921.161(1), Florida Statute (1975). We, therefore, reverse and remand the cause with directions to the trial court to resentence defendant after first affording him an opportunity to offer matters in mitigation of senten…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974)
- Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)