MARK BUCHER v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: July 26, 2023
• Docket: 23-0373
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 26, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0373 Lower Tribunal No. 20-290-A-K ________________

Mark Bucher, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Monroe County, Mark Wilson, Judge.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before LINDSEY, HENDON, and MILLER, JJ.

PER CURIAM. Appellant, Mark Bucher, challenges the revocation of his probation and

resulting sentence for the underlying crime of aggravated battery. On

appeal, Bucher contends the written order rendered below failed to conform

with the oral pronouncement of the trial court. Because this ground has been

raised before us in the first instance, we affirm without prejudice to the filing

of a motion to correct sentence pursuant to Florida Rule of Criminal

Procedure 3.800(b). See Smith v. State, 306 So. 3d 1147, 1148 (Fla. 3d

DCA 2020) (holding defendant was required to preserve discrepancy

between oral pronouncement and written order “either by contemporaneous

objection to the written revocation order, or by filing a motion to correct

sentence pursuant to [rule] 3.800(b)”); see also Thomas v. State, 763 So. 2d

316, 316 (Fla. 2000) (approving district court decision characterizing conflict

between oral pronouncement and written order “as a ‘scrivener’s error’ that

did not constitute fundamental error correctable on direct appeal absent

preservation” and could be corrected by filing rule 3.800(b) motion); Parris v.

State, 974 So. 2d 415, 415–16 (Fla. 5th DCA 2007) (concluding appellant

failed to preserve issue regarding conflict between trial court’s oral

pronouncement and written order, as issue was not first presented to trial

court by contemporaneous objection or rule 3.800(b) motion); Jelks v. State,

770 So. 2d 183, 185 (Fla. 2d DCA 2000) (“[T]o the extent that this type of

2 error can be classified as a scrivener’s error, it is now clear that a defendant

or the State can seek to correct the error by filing a motion pursuant to [rule]

3.800(b).”).

Affirmed.