JOHNNY EDWARD SIMON v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: November 22, 2019
• Docket: 18-4967
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JOHNNY EDWARD SIMON, ) ) Appellant, ) ) v. ) Case No. 2D18-4967 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed November 22, 2019.

Appeal from the Circuit Court for Polk County; Keith Spoto, Judge.

Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

LaROSE, Judge.

Johnny Edward Simon appeals his judgment and sentences for battery on

a law enforcement officer (count 1) and resisting arrest with violence (count 2). We

have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). Counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), advising that there are no issues of

arguable merit. We agree and affirm Mr. Simon's judgment and sentences. However,

upon our independent review of the record, we remand for correction of a scrivener's error on count 2. See In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (stating that

upon counsel's submission of an Anders brief "[t]he appellate court then assumes the

responsibility of conducting a full and independent review of the record to discover any

arguable issues apparent on the face of the record").

In addressing Mr. Simon at the sentencing hearing, the trial court "f[ou]nd

you qualify as a prison releasee reoffender on Count 2. I'm going to adjudicate you

guilty and sentence you on . . . count 2 five years Florida State prison as a prison

releasee reoffender."

On count 2, however, the written judgment and sentence in our record

fails to include the orally pronounced PRR designation. "Consequently, remand is

required to ensure that the written sentence comports with the trial court's oral

pronouncement." Devlin v. State, 224 So. 3d 803, 804 (Fla. 2d DCA 2017); see, e.g.,

Ducker v. State, 197 So. 3d 1095, 1096 (Fla. 1st DCA 2016) ("[A]t the sentencing

hearing, the trial court orally designated Appellant as a habitual felony offender and

prison releasee reoffender. However, the written judgment in the record on appeal does

not reflect these designations. Accordingly, on remand, the trial court shall correct the

judgment to conform to the oral pronouncement.").

Correction of the scrivener's error on remand does not require Mr. Simon's

presence. See Rodriguez v. State, 223 So. 3d 1053, 1055 (Fla. 2d DCA 2017);

Nickerson v. State, 927 So. 2d 114, 117 (Fla. 2d DCA 2006) ("Generally speaking, a

defendant need not be present or represented by counsel when the purpose of a

resentencing is the performance of a ministerial-type function or the correction of a

clerical error.").

-2- Affirmed; remanded to correct scrivener's error.

MORRIS and ATKINSON, JJ., Concur.

-3-