Brimage v. State

District Court of Appeal of Florida

Brimage v. State

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

CourtDistrict Court of Appeal of Florida

DecidedJune 16, 1999

DocketNo. 98-2393

StatusPublished

Cited by1 cases

This text of 745 So. 2d 340 (Brimage v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brimage v. State, 745 So. 2d 340, 1999 Fla. App. LEXIS 7882, 1999 WL 391850 (Fla. Ct. App. 1999).

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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.

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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.

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745 So. 2d 340, 1999 Fla. App. LEXIS 7882, 1999 WL 391850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brimage-v-state-fladistctapp-1999.

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