DONNA MARIE FONSECA vs STATE OF FLORIDA

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DONNA MARIE FONSECA,

Appellant,

v. Case No. 5D21-2479 LT Case No. 2021-CF-000988-A

STATE OF FLORIDA,

Appellee.

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Opinion filed September 16, 2022

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Matthew J. Metz, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM. In this Anders appeal, we affirm Fonseca's judgment and sentence.

Fonseca had filed a timely motion pursuant to Florida Rule of Criminal

Procedure 3.800(b)(2) to correct a sentence, which imposed a sentence of

three years in prison for two counts in 2021-CF-988-A. That was in fact the

sentence orally announced by the court following acceptance of the plea.

However, count 2 of that information was a misdemeanor punishable by only

up to one year in the county jail.

A hearing was held on Fonseca's motion, and the trial court orally

granted that motion.1 However, it appears that no amended judgment and

sentence was entered. Therefore, as requested by Fonseca in her second

motion to correct sentencing error, we remand for the trial court to enter a

formal amended written judgment and sentence nunc pro tunc to September

20, 2021, to resolve the conflict in the two written judgments. See Lopez-

Vasquez v. State, 966 So. 2d 996, 997 (Fla. 5th DCA 2007) (affirming

conviction and sentence in Anders appeal but remanding for entry of an

1 One judgment and sentence seems to reflect the court's attempt to sentence Fonseca to three years in the Department of Corrections on what by process of elimination would be count 1, with time served on count 2. A second judgment and sentence, entered the same day, reflects only a sentence on the felony Possession of Methamphetamine count. It appears that at the hearing on the motion to correct sentence the State, defense, and court recognized an error in the paperwork and attempted to correct same.

2 amended judgment). On remand, the trial court is also directed to correct

Fonseca's scoresheet if necessary.

AFFIRMED and REMANDED with Instructions.

COHEN, WALLIS and NARDELLA, JJ., concur.