Sullivan v. State

971 So. 2d 269, 2008 Fla. App. LEXIS 519, 2008 WL 59215

Opinion

PER CURIAM.

Appellant Sean Patrick Sullivan appeals his judgment and sentence. In the proceedings below, appellant pled no contest to three counts, (I) burglary of a dwelling with assault, (II) criminal mischief, and (III) assault. At his sentencing hearing, the trial court orally announced appellant would be sentenced as a youthful offender to time served on counts II and III, and to seventy-two months probation, with the first twenty-four months on community control, on count I. However, the subsequent written judgment and sentence did not reflect that appellant was sentenced as a youthful offender. Appellant filed a Motion to Correct Illegal Sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). On May 29, 2007, the Clerk entered a statement certifying that no ruling was entered on the motion. Pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B), we treat the statement of no ruling as a denial of the motion.

The sole issue on appeal is whether the trial court erred in entering a written judgment and sentence which does not conform to the court’s oral pronouncement. A discrepancy between a written judgment and sentence and the oral pronouncement of the sentence is cognizable in a Rule 3.800 motion to correct illegal sentence. See Williams v. State, 957 So.2d 600 (Fla.2007). In such cases, “a court’s oral pronouncement of a sentence controls over the written sentencing document.” Id. at 603. Thus, we REVERSE appellant’s sentence to the extent it does not reflect that appellant was sentenced as a youthful offender, and REMAND with instructions to the trial court to correct the error. Because this is a ministerial act, the appellant’s presence is not required.

POLSTON, HAWKES, and THOMAS, JJ., concur.