Opinion
1D22-1874
09-20-2023
Dominique Latrell Gray, Appellant, v. State of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Okaloosa County. John T. Brown, Judge.
Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
We affirm Appellant's judgment and sentence. We write only to correct two scrivener's errors on Appellant's written judgment and sentence. See Ashley v. State, 850 So.2d 1265, 1268 n. 3 (Fla. 2003) (defining a scrivener's error as a written clerical error that is not "the result of a judicial determination or error").
First, count three of the judgment is listed as a second-degree felony, but the jury found Appellant guilty of the lesser-included third-degree felony on this count. See § 847.0135(3), Fla. Stat. (2019). Based on our review of the jury verdict and the sentencing transcript, this was a scrivener's error. On remand, the trial court shall correct the judgment and designate count three as a third-degree felony.
Second, the trial court orally pronounced a sentence of six years in prison on count one, followed by ten years of sex offender probation on count two and five-year terms of sex offender probation on counts three, four, and five. All probationary sentences were ordered to run concurrently to each other. However, the written sentence only includes a seventy-two-month prison sentence on all counts. Because other sentencing documents and the oral pronouncement are consistent, this appears to be a scrivener's error, but remand is required. See Parker v. State, 276 So.3d 108, 109 (Fla. 1st DCA 2019) (holding that remand was required to conform the written sentence to the oral pronouncement). On remand, the trial court shall correct the written sentence to conform to the oral pronouncement.
Because correction of these errors requires no judicial discretion, but only a ministerial act, Appellant's presence is not required on remand. See Parker, supra (holding that defendant's presence is not required for ministerial act of correcting written sentence). In all other respects the judgment of conviction and the sentences are affirmed.
AFFIRMED and REMANDED with instructions.
OSTERHAUS, CJ, and KELSEY and MK THOMAS, JJ, concur