Colon v. State

869 So. 2d 1290, 2004 WL 840622

• Court: District Court of Appeal of Florida
• Decided: April 21, 2004
• Docket: 4D03-3833
• Status: Published

Opinion

869 So.2d 1290 (2004)

Louis COLON, Appellant,
v.
STATE of Florida, Appellee.

No. 4D03-3833.

District Court of Appeal of Florida, Fourth District.

April 21, 2004.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In this Anders^[1] appeal, we affirm the convictions and sentences.

Our review of the record indicates a possible sentencing error, in that the trial court's oral pronouncement of sentence did not include the imposition of a ten-year mandatory minimum term as a habitual violent felony offender, which appears in the written sentences. The mandatory minimum is discretionary, not mandatory, see State v. Hudson, 698 So.2d 831 (Fla. 1997) (not cited), and thus must be orally pronounced. See Hill v. State, 652 So.2d 904 (Fla. 4th DCA 1995); Green v. State, 615 So.2d 823 (Fla. 4th DCA 1993).

However, the issue was not preserved for appeal, and unpreserved sentencing error cannot be corrected in an Anders case. See Washington v. State, 814 So.2d 1187 (Fla. 5th DCA 2002), rev. dismissed, 831 So.2d 675 (Fla.2002); A.F.E. v. State, 853 So.2d 1091, 1094-95 (Fla. 1st DCA 2003). Accordingly, our affirmance is without prejudice to appellant's filing an appropriate post-conviction motion raising any such unpreserved sentencing issues.

FARMER, C.J., POLEN and KLEIN, JJ., concur.

NOTES

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