DAVID SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1999-11-19
No. 98-2658
HARRIS, J., concurs., DAUKSCH, J., dissents with opinion.
746 So. 2d 497 Florida District Court of Appeal, Fifth District (1999) Positive Treatment
Cited by 4 cases
Topics
Sentence Habitual Felony Offender Sentencing Sentencing Appellate Review

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Opinion of the Court
W. SHARP, J.

Smith appeals from his adjudication of guilt for burglary of a conveyance,1 and his sentence of eight years in prison as an habitual felony offender.2 He raises two issues which we find have no legal merit. He also urges the sentence as written should be corrected to reflect the trial judge’s oral pronouncement that the sentence in this case would run concurrent with any other active sentence. We affirm.

We have consistently held that if a trial court orally pronounces a sentence and later renders a written order which is in conflict, the oral pronouncement prevails over the written sentence, or if there is doubt as to what the trial court intended, the cause should be remanded for clarification. See Cleveland v. State, 617 So. 2d 1166 (Fla. 5th DCA 1993); Lester v. State, 563 So. 2d 178 (Fla. 5th DCA 1990).

However, we cannot follow that course in this case because neither Smith nor his counsel challenged the sentence by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). We are at this point bound by our decisions in Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), rev. granted, 728 So. 2d 203 (Fla.1999); Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998), rev. granted, sub nom, Maddox v. State, 728 So. 2d 203 (Fla.1999).

AFFIRMED.

HARRIS, J., concurs.

DAUKSCH, J., dissents with opinion.

. § 810.02(1) and (3), Fla. Stat. (1997).

. § 775.084(4)(a), Fla. Stat. (1997).

Dissent
DAUKSCH, J.,

DAUKSCH, J.,

dissents.

I respectfully dissent.

The supreme court has indicated the rule in Maddox is no longer valid because it intends to reverse its holding. See Speights v. State, No.93,207, - So. 2d -(Fla. May 14, 1999). Thus, we should no longer follow it.

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Citator

Cited By

  • Beate Roswitha Wolf v. State, 750 So. 2d 756 (Fla. 5th DCA 2000)
    …esentencing consistent with the oral pronouncement at the sentencing hearing. Finally, we find that appellant’s failure to timely object to the imposition of costs for testing procedures precludes our granting relief on that point. Smith v. State, 746 So. 2d 497 (Fla. 5th DCA 1999); Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). SENTENCE VACATED IN PART; AFFIRMED IN PART; REMANDED. ANTOON, C.J., HARRIS and PETERSON, JJ., concur.…
  • Gerrod Antwan Allen v. State, 43 So. 3d 874 (Fla. 5th DCA 2010)
    …authorize a total six years of probation and county jail time, for the third-degree felonies. As the written sentence must correspond to the oral pronouncement, we remand for clarification and correction of the written sentence. See Smith v. State, 746 So. 2d 497 (Fla. 5th DCA 1999). AFFIRMED but REMANDED with instructions. MONACO, C.J. and TORPY and JACOBUS, JJ., concur.…

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