Opinion
No. 2D99-4519.
Opinion filed March 24, 2000.
Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Polk County; Dennis P. Maloney, Judge.
Errol D. Brooks appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Brooks asserts that his sentences in case numbers 91-3635 and 91-3539 are illegal because the trial court failed to orally pronounce him as a habitual offender, and, therefore, the written habitual offender sentences fail to comport with the oral pronouncements at sentencing. We affirm as to case number 91-3635, reverse as to case number 91-3539, and remand for further proceedings.
A claim of this nature is cognizable in a motion to correct illegal sentence. See Dawson-Knapp v. State, 698 So.2d 266 (Fla. 2d DCA 1997). The limited record before this court fails to refute Brooks' claim as to both sentences. We affirm the trial court's denial of relief on this issue as to case number 91-3635 because the sentencing hearing transcript demonstrates on page twenty-six that the trial court, after making sufficient findings, properly pronounced that Brooks would serve his life sentence with habitual offender sanctions.
However, the court's sentence in case number 91-3539 is, at best, ambiguous. A conflict appears to exist between the oral pronouncement and the written sentence as to whether the court intended to sentence Brooks as a habitual offender. If the court did not intend to sentence Brooks as a habitual offender in case number 91-3539, the sentence imposed exceeds the permissible length under the circumstances for a guidelines sentence.
When a discrepancy exists between the oral pronouncement and the written sentence, remand is required to correct the error.See Dawson-Knapp. However, a defendant's "sentence is properly what the trial court intended it to be." Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993) (quoting Gonzales v. State, 488 So.2d 610 (Fla. 4th DCA 1986)). Where the record demonstrates that during the oral pronouncement of the sentence the trial judge made inconsistent or ambiguous statements, the matter must be remanded to the trial court for a factual determination to clarify the sentence imposed by the trial court and to enter a corrected sentencing order. See Enchautegui v. State, 25 Fla. L. Weekly D106 (Fla. 2d DCA Jan. 7, 2000); Jackson; Gates v. State, 535 So.2d 359 (Fla. 4th DCA 1989).
Accordingly, this cause is remanded to the trial court with directions to clarify the sentence imposed in case number 91-3539 and, if appropriate, to enter a corrected sentence. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days.
Affirmed in part, reversed in part, and remanded for further proceedings.
PATTERSON, C.J., and PARKER and CASANUEVA, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.