VERMON T. DONALD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vernon Donald appeals his resentenced conviction for attempted first-degree murder, arguing that the written sentencing document does not match the trial court's oral pronouncement and violates the appellate court's prior remand instructions. The court agrees that the written judgment improperly includes an habitual violent felony offender designation that was not orally pronounced and was contrary to the remand directive, and reverses for correction of this clerical error.
The written sentencing document must conform to the trial court's oral pronouncement. The provision designating Donald as an habitual violent felony offender in the written document constitutes inadvertent clerical error and must be deleted because the trial court did not orally impose such a sentence and the provision violates the appellate court's remand instructions.
[1] A written judgment and sentence must conform to the trial court's oral pronouncement.
[2] A trial court is not authorized to impose a sentence that does not comport with remand instructions when a cause is remanded for resentencing.
Previewing 2 of 4 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“It is a settled rule of law that the written judgment and sentence must conform to the trial court's oral pronouncement.”
Establishes the fundamental principle that written sentencing documents must match what was actually pronounced in court.
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Join FLexlaw to unlock all legal intelligenceDonald was previously convicted of attempted first-degree murder and initially sentenced as an habitual violent felony offender. On remand for resente…
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JOANOS, Chief Judge.
Appellant, Yermon T. Donald, appeals the sentence imposed upon this court’s remand for resentencing. See Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990), review denied, 576 So. 2d 291 (Fla.1991). Appellant contends the trial court’s written judgment does not comport with the oral pronouncement of sentence, and does not comply with this court’s prior opinion which directed that a non-habitual offender sentence would be imposed. The state concedes the cause should be remanded for correction of clerical error. We reverse and remand for correction of the sentencing document.
At resentencing, the trial court pronounced sentence thusly:
Mr. Donald, you were previously adjudicated, and that adjudication still stands on attempted first degree murder. I would sentence you to twenty-five years, Department of Corrections, with a minimum of a three-year sentence because of the use of a firearm.
The written judgment and sentencing document imposes a sentence of twenty-five years, together with a minimum mandatory sentence of three years, for use of a firearm, and awards credit for 1066 days served. In addition, the final provision on the written sentence form states: “The defendant is adjudged an habitual violent felony offender and has been sentenced to an extended term in this sentence in accordance with the provisions of F.S. 775.084.”
It is a settled rule of law that the written judgment and sentence must conform to the trial court’s oral pronouncement. Larry v. State, 590 So. 2d 1125 (Fla. 1st DCA 1992); Frederickson v. State, 585 So. 2d 506 (Fla. 1st DCA 1991). Moreover, when a cause is remanded for resentencing, the trial court is not authorized to impose a sentence that does not comport with the remand instructions. Larry v. State, 576 So. 2d 1346 (Fla. 1st DCA 1991).
The sentencing transcript of the resentencing proceeding in this case reveals that the trial court did not impose an habitual violent felony offender sentence. Rather, the trial court’s oral pronouncement was in accordance with the remand instructions set forth in this court’s prior opinion. In keeping with the state’s concession of error, we conclude the typed-in provision on the sentencing document, pertaining to habitual violent felony offender sentencing, constitutes inadvertent clerical error. Accordingly, this cause is remanded with instructions to delete the provision for habitual violent felony offender sentencing from the written sentencing document.
BOOTH and WOLF, JJ., concur.
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Citator
Cited By
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Ross v. State, 696 So. 2d 831 (Fla. 2d DCA 1997)…defendant’s contention that his written sentence must be corrected to reflect the trial court’s oral pronouncement that he would not be sentenced as a habitual felony offender. See Wilcox v. State, 674 So. 2d 191 (Fla. 2d DCA 1996); Donald v. State, 613 So. 2d 935 (Fla. 1st DCA 1993). The state concedes this was error. Accordingly, we reverse on this basis only. The defendant also contends that a witness’s identification of him should be suppressed because it occurred after he was arrested without probable…
Authorities Cited
- Vermon T. Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990)
- Larry v. State, 576 So. 2d 1346 (Fla. 1st DCA 1991)
- Wolfe v. State, 585 So. 2d 506 (Fla. 2d DCA 1991)
- Frederickson v. State, 585 So. 2d 506 (Fla. 1st DCA 1991)
- Larry v. State, 590 So. 2d 1125 (Fla. 1st DCA 1992)
- Haws v. State, 590 So. 2d 1125 (Fla. 5th DCA 1992)