Clary v. State

District Court of Appeal of Florida

Clary v. State

524 So. 2d 732, 13 Fla. L. Weekly 1105, 1988 Fla. App. LEXIS 1961, 1988 WL 47240

CourtDistrict Court of Appeal of Florida

DecidedMay 11, 1988

DocketNo. 87-196

StatusPublished

This text of 524 So. 2d 732 (Clary 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

Clary v. State, 524 So. 2d 732, 13 Fla. L. Weekly 1105, 1988 Fla. App. LEXIS 1961, 1988 WL 47240 (Fla. Ct. App. 1988).

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Opinion

MILLS, Judge.

Joseph Huey Clary appeals from concurrent sentences for robbery with a firearm and possession of a firearm by a convicted felon. We remand appellant’s sentence for possession of a firearm by a convicted felon for conformance of the written sentence to the trial court’s oral pronouncement.

We do not reach the sentencing guidelines issue raised by appellant because we [733]*733conclude, upon review of the sentencing hearing transcript, that defense counsel effectively withdrew his objection to the scoring of a third prior breaking and entering conviction, the existence of which he initially questioned. Since this alleged error involves a factual issue not apparent from the record before us, it is not reviewable. Johnson v. State, 506 So.2d 1086 (Fla. 1st DCA 1987). As in Johnson, however, we note that on remand the trial court should correct any scoresheet errors proven by the parties.

REMANDED FOR RESENTENCING.

SHIVERS and JOANOS, JJ., concur.

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MILLS, Judge.

Joseph Huey Clary appeals from concurrent sentences for robbery with a firearm and possession of a firearm by a convicted felon. We remand appellant’s sentence for possession of a firearm by a convicted felon for conformance of the written sentence to the trial court’s oral pronouncement.

We do not reach the sentencing guidelines issue raised by appellant because we [733]*733conclude, upon review of the sentencing hearing transcript, that defense counsel effectively withdrew his objection to the scoring of a third prior breaking and entering conviction, the existence of which he initially questioned. Since this alleged error involves a factual issue not apparent from the record before us, it is not reviewable. Johnson v. State, 506 So.2d 1086 (Fla. 1st DCA 1987). As in Johnson, however, we note that on remand the trial court should correct any scoresheet errors proven by the parties.

REMANDED FOR RESENTENCING.

SHIVERS and JOANOS, JJ., concur.

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Bluebook (online)

524 So. 2d 732, 13 Fla. L. Weekly 1105, 1988 Fla. App. LEXIS 1961, 1988 WL 47240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clary-v-state-fladistctapp-1988.

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