Montoya v. State

• Court: District Court of Appeal of Florida
• Decided: May 9, 2018
• Docket: 16-1685
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 9, 2018.

________________

No. 3D16-1685 Lower Tribunal Nos. 11-30848; 12-26223; 12-26477 ________________

Andres Montoya, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian, Judge.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before SUAREZ, SALTER and LUCK, JJ.

ON CONFESSION OF ERROR

PER CURIAM. Based on the state’s confession of error, with which we agree, we reverse

special condition twelve – “You will have no contact (direct or indirect) with the . .

. victim’s family during the period of probation” – in the community control and

probation portion of defendant Andres Montoya’s sentence, and remand for the

entry of a corrected order of probation that does not contain this condition. See

Scott v. State, 109 So. 3d 866 (Fla. 3d DCA 2013) (“The State properly conceded

that the trial court erred in imposing a written sentence that conflicts with the oral

pronouncement. The written sentence designated the defendant both a prison

releasee reoffender and a habitual felony offender. The oral pronouncement,

however, reflects that the trial court designated the defendant a prison releasee

reoffender only. The oral pronouncement of sentence prevails over a subsequent

and conflicting written sentencing order.”). Montoya’s sentence is affirmed in all

other respects.

Reversed and remanded with instructions.