HUGO HERNANDEZ
v.
STATE OF FLORIDA CORRECTED ORDER
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Hugo Hernandez appealed his conviction for driving with a suspended license and driving under the influence. The appellate court affirmed the conviction but reversed in part and remanded because the written sentencing order conflicted with the trial court's oral pronouncement, creating a sentence that exceeded the statutory maximum.
The court affirmed the conviction but reversed and remanded to correct the sentencing order to conform the written sentence to the oral pronouncement. The appellate court cannot consider whether the appellant completed probation during the appeal, as it is restricted to facts in the record and such matters must be addressed by the trial judge.
[1] Where there is a discrepancy between the oral pronouncement of a sentence and the written sentencing order, the case should be remanded for the trial court to conform the…
[2] The correction of a scrivener's error in a sentencing order to conform the written sentence to the oral pronouncement is a ministerial act for which the defendant need no…
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Join FLexlaw to unlock all legal intelligence“Where there is a discrepancy between the oral pronouncement and the written sentence, we should remand for the trial court to conform the written sentence to the oral pronouncement.”
Establishes the legal standard for correcting sentencing errors when oral and written orders conflict.
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Join FLexlaw to unlock all legal intelligenceHernandez was convicted of misdemeanor charges of driving with a suspended license and driving under the influence of alcohol. At sentencing, the tria…
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Before: TRAWICK, WALSH and REBULL, JJ.
WALSH, J.
We hereby grant Appellant's Motion for Clarification, withdraw our opinion issued on April 21, 2020 and issue the following corrected opinion.
Hugo Hernandez appeals from conviction and sentence on misdemeanor charges of driving with a suspended license and driving under the influence of [*1] alcohol. While we affirm the Appellant's conviction, finding any alleged errors were either harmless or unpreserved, we reverse in part and remand for the trial court to correct a scrivener's error in the sentencing order. At sentencing, the transcript reflects that the trial court placed the Defendant on a 12-month period of probation during which he was to serve a 30-day period of incarceration as a condition of probation. However, the written order reflects that the 12-month probation term would commence at the conclusion of the jail term – which would result in a sentence exceeding the statutory maximum of one year. Where there is a discrepancy between the oral pronouncement and the written sentence, we should remand for the trial court to conform the written sentence to the oral pronouncement." Frost v. State, 769 So. 2d 443, 444 (Fla. 1st DCA 2000) (mem.) (citing Willis v. State, 656 So. 2d 261 (Fla. 1st DCA 1995)).
Parker v. State, 276 So. 3d 108 (Fla. 1st DCA 2019). Accordingly, Appellant's case is remanded with instructions that the written sentence for the count of driving under the influence be conformed to the oral pronouncement. Upon remand, Mr. Hernandez does not need to be present for the correction of the sentence, since the correction "is merely a ministerial act.” Frost, 769 So. 2d at 444. (citations omitted).
In his motion for clarification, the Appellant argues that during the pendency of this appeal, he has completed his one-year probation term and therefore can no longer legally be required to serve his 30-day jail sentence. Because this Court is [*2] restricted to facts contained in the record on appeal and cannot take notice of whether the Appellant has, indeed, successfully completed his probation, this is a matter for the trial judge to address. See Dep't of Transp. V. Baird, 992 So. 2d 378, 382 (Fla. 5th DCA 2008) (appellate court may not consider matters outside the record on appeal). In all other respects, the judgment and sentence are affirmed and the motion for clarification is otherwise denied.
Affirmed in part, reversed in part and remanded.
REBULL and TRAWICK, JJ. CONCUR