GLINDER LEE CECIL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cecil appealed her resentencing following remand by this court. The court found multiple errors in the written judgments that did not conform to the oral pronouncements and that included improper habitual offender designations, and remanded for correction and compliance with the prior mandate.
The court remanded for correction of multiple sentencing errors: (1) the written judgments must be corrected to strike habitual offender designations not orally pronounced; (2) the incarceration terms must be corrected from 2½ years to the orally pronounced 3½ years; (3) the trial court failed to properly resentence in one case as mandated; and (4) probation revocations based on illegal sentences must be stricken.
[1] A written judgment and sentence must conform to the oral pronouncement of sentence at the sentencing hearing.
[2] A trial court cannot revoke probation imposed as part of an illegal sentence.
Previewing 2 of 5 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“the written judgments and sentences reflect a sentence of 2V2 years in each case and that, as to each, Cecil was a habitual offender. The trial court relied on the convictions in 89-2883 and 91-418 to habitualize Cecil in 92-3”
Establishes the discrepancy between oral and written sentences and the improper habitual offender designation
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Join FLexlaw to unlock all legal intelligenceCecil pled guilty to two third-degree felonies in October 1990 and received consecutive probationary terms. She was later charged with purchasing coca…
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PER CURIAM.
Glinder Lee Cecil has appealed from sentence imposed after remand by this court in Cecil v. State, 596 So. 2d 461 (Fla. 1st DCA 1992). We remand for correction of Cecil’s sentence as outlined below.
In October 1990, Cecil pled guilty to two 3d-degree felonies (Case Nos. 89-2561 and 89-2883), and received consecutive 5-year probationary terms. An affidavit of violation of probation was filed based on a new offense, the 3d-degree felony of purchasing cocaine (Case No. 91-418). The trial court revoked probation and, in March 1991, sentenced Cecil as follows: 89-2561— 3V2 years incarceration plus 4 years, 7 months probation concurrent with 89-2883 — 3V2 years plus 5 years probation, and 91-^18 — 3¾⅞ years plus 11 years probation, consecutive to the first two. Cecil appealed and this court reversed, finding that the total of each sentence exceeded the 5-year statutory maximum for 3d-degree felonies. Cecil. The court remanded for resentencing, and the mandate issued on February 19, 1992.
On January 2, 1992, an affidavit of violation of probation was filed based on a new offense of possession of cocaine (Case No. 92-3). Cecil pled guilty to the new charge, and admitted the violation of probation. On April 14, 1992, she came on for resentencing pursuant to Cecil, and for sentencing in 92-3. The trial court revoked probation in 89-2883 and 91-418, and orally re-sentenced Cecil to 3V2 year terms; no habit-ualization was orally pronounced. However, the written judgments and sentences reflect a sentence of 2V2 years in each case and that, as to each, Cecil was a habitual offender. The trial court relied on the convictions in 89-2883 and 91-418 to habitualize Cecil in 92-3, and she was sentenced in that case to 10 years. The disposition in 92-3 is not at issue herein.
Cecil argues only that the written judgments and sentences in 89-2883 and 91-418 must be corrected to eliminate the indication of habitual offender status as inconsistent with the oral pronouncement of sentence. The state concedes this error, and urges remand for correction. On our own motion, we also note that: 1) Cecil could not properly be charged with violating the probation imposed in 89-2561, 89-2883 and 91-418 as part of illegal sentences, Cecil, nor have that probation revoked; 2) the trial court failed to comply with the Cecil mandate to re-sentence Cecil in 89-2561; and 3) the 2⅝ year terms reflected in the written judgments and sentences in 89-2883 and 91-418 are inconsistent with the 3½ year terms orally pronounced at sentencing.
Based on the error raised by the parties, and on the errors noted in the court’s own review of the case, we remand with the following directions: 1) re-sentence Cecil in 89-2561, in compliance with the Cecil mandate, see Stuart v. Hertz Corp., 381 So. 2d 1161, 1163 (Fla. 4th DCA 1980) (district courts of appeal have inherent power to enforce their mandates); 2) strike from the judgments and sentences in 89-2883 and 91-418 any indication that probation was revoked in those cases, in that such probation was part of an illegal sentence stricken in Cecil; and 3) conform the written judgments and sentences in 89-2883 and 91-418 to the oral pronouncement of sentence by: a) striking any indication that Cecil was classified as an habitual offender in those cases and b) correcting the terms of incarceration to 3V2 years, see Bennett v. State, 588 So. 2d 672 (Fla. 1st DCA 1991) (written sentence must conform with the oral pronouncement at the sentencing hearing).
Remanded with directions.
JOANOS, C.J., and ERVIN and WEBSTER, JJ., concur.
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Cited By
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Taylor v. State, 702 So. 2d 487 (Fla. 1997)…GRIMES, Senior Justice. We review Taylor v. State, 690 So. 2d 686 (Fla. 5th DCA 1997), based on conflict with Cecil v. State, 614 So. 2d 603 (Fla. 1st DCA 1993). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Taylor was convicted of driving under the influence resulting in serious bodily injury, a third-degree felony., Because substantial restitution…1 / 2
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Solomon Jackson v. State, 654 So. 2d 234 (Fla. 4th DCA 1995)…a plea of guilty to the revocation. See Reed, 616 So. 2d at 593. Since appellant was serving an illegal sentence, the trial court could not charge appellant with a violation of the terms of his probation nor revoke his probation. In Cecil v. State, 614 So. 2d 603 (Fla. 1st DCA 1993), the trial court originally sentenced the defendant to two five-year consecutive probationary periods for two separate offenses. The defendant’s subsequent commission of another offense resulted in revocation of his probation and…
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Harrelson v. State, 620 So. 2d 1131 (Fla. 1st DCA 1993)…this issue. While we also affirm the trial court’s action with regard to credit for the original incarcerative term, we remand with directions to conform the written sentence to the court’s oral pronouncement awarding the credit. See Cecil v. State, 614 So. 2d 603 (Fla. 1st DCA 1993). The state concedes that the trial court erred in failing to award credit for time spent in jail pending resolution of the instant revocation proceeding. See also Townsend v. State, 604 So. 2d 541 (Fla.2d DCA 1992). On remand, th…
Authorities Cited
- Frank A. Stuart, M.D. v. The HERTZ Corp., 381 So. 2d 1161 (Fla. 4th DCA 1980)
- Bennett v. State, 588 So. 2d 672 (Fla. 1st DCA 1991)
- Cecil v. State, 596 So. 2d 461 (Fla. 1st DCA 1992)