Opinion
No. 4D19-1036
08-19-2020
Kevin SMITH, Appellant, v. STATE of Florida, Appellee.
Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Kuntz, J.
Kevin Smith raises four issues on appeal. We affirm three without comment. For the fourth issue, Smith argues the court's written sentence did not conform to the court's oral pronouncement at the sentencing hearing. We agree.
"Where a trial court's written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls." Thomas v. State , 183 So. 3d 479, 480 (Fla. 4th DCA 2016) (quoting Santiago v. State , 133 So. 3d 1159, 1167 (Fla. 4th DCA 2014) ).
The court's written sentence designated Smith a violent career criminal on counts I through V. But the court's oral pronouncement of Smith's sentence did not. As a result, the circuit court must correct Smith's sentence to remove the violent career criminal status.
On counts III through V, all second-degree felonies, the court orally pronounced 30 years as a prison releasee reoffender and 15 years plus one day as a habitual felony offender. In contrast, the written order on these counts reflects 30-year sentences, designations as a habitual felony offender as stated on the record, and designations as a prison releasee reoffender with mandatory minimum of 15 years. Again, the written sentence conflicts with the court's oral pronouncement.
The maximum sentence for a second-degree felony with a habitual felony offender designation is 30 years, § 775.084(4)(a)2., Fla. Stat. (2019), and the maximum with a prison releasee reoffender designation is 15 years, § 775.082(9)(a)3.c., Fla. Stat. (2019). The court orally sentenced Smith to 15 years and one day as a habitual felony offender. Smith's sentence on those counts cannot exceed that oral pronouncement.
We affirm but remand for correction of the written order to conform to the oral pronouncement as stated above.
Affirmed and remanded.
Levine, C.J., and Shepherd, Caroline, Associate Judge, concur.