Brimage v. State

745 So. 2d 340, 1999 Fla. App. LEXIS 7882, 1999 WL 391850

Opinion

PER CURIAM.

Appellant argues, and the state correctly concedes, that the trial court erred in sentencing him as a habitual offender upon revocation of probation in case numbers 89-31657 and 88-45148A. The written sentencing orders do not reflect the trial court’s oral pronouncement regarding case numbers 89-31657 and 88-45148A, where appellant was sentenced to one year and one day in state prison, not as a habitual offender, but rather concurrently with a habitual offender sentence imposed in another case. A written sentencing order must conform to the trial court’s oral pronouncement of sentence. See Tannehill v. State, 712 So.2d 438 (Fla. 3d DCA 1998). Moreover, a trial court cannot habitualize a defendant on a case if it did not, at the time of the original sentencing, have the option of imposing a habitual offender sentence. See Snead v. State, 616 So.2d 964 (Fla.1993).

Reversed and remanded with directions to strike the habitual offender designation in the written sentences for case numbers 89-31657 and 88-45148A.