Hillman v. State

Full title: KENNETH RICHARD HILLMAN, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Date published: May 22, 2020

295 So. 3d 1202 (Fla. Dist. Ct. App. 2020)

Opinion

Case No. 5D19-468

05-22-2020

Kenneth Richard HILLMAN, Appellant, v. STATE of Florida, Appellee.

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, Wesley Heidt and Rebecca Rock McGuigan, Assistant Attorneys General, Daytona Beach, for Appellee.

PER CURIAM.

James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, Wesley Heidt and Rebecca Rock McGuigan, Assistant Attorneys General, Daytona Beach, for Appellee.

PER CURIAM.

In this Anders ¹ appeal, we affirm Kenneth Richard Hillman's convictions. However, we observe that the written sentence does not conform to the trial court's oral pronouncement.

1 Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

The trial court orally pronounced Hillman's sentence on Count IV to run concurrently with the sentence on Count I. The written sentence instead reflects that Count IV will run concurrently with the sentences on Counts III and V. We therefore reverse the written sentence and remand for a corrected sentence that complies with the trial court's oral pronouncement. See, e.g ., Powell v. State , 223 So. 3d 412, 414 (Fla. 5th DCA 2017) ("The written sentence should be corrected to conform to the oral pronouncement.").

In addition, the trial court ordered Hillman to serve five years of probation on Count VI consecutive to all other sentences. The imposition of five years of probation is not error. However, given the unique arrangement of the other sentences, Hillman's current sentencing documents can be read to require simultaneous incarceration and probation. As a result, we also reverse the order of probation and remand for the lower court to eliminate that possibility. Cf. Nobles v. State , 605 So. 2d 996, 997 (Fla. 2d DCA 1992) (commenting that "reversible error" would result in the imposition of "simultaneous terms of imprisonment and probation"); Johnson v. State , 561 So. 2d 1254, 1255 (Fla. 2d DCA 1990) ("The appellant's probation will not commence until he serves his prison sentence." (citations omitted)).

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, C.J., LAMBERT and EISNAUGLE, JJ., concur.