Summary
remanding for entry of an amended judgment and sentence to correct scrivener's errors as the trial court had ordered in granting defendant's rule 3.800(b) motion
Summary of this case from Richardson v. StateOpinion
No. 2D21-3220.
12-30-2022
Derek Lamont JOHNSON, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II , Public Defender, and Daniel Muller , Assistant Public Defender, Bartow, for Appellant. Ashley Moody , Attorney General, Tallahassee, for Appellee.
Howard L. Dimmig, II , Public Defender, and Daniel Muller , Assistant Public Defender, Bartow, for Appellant.
Ashley Moody , Attorney General, Tallahassee, for Appellee.
MORRIS, Chief Judge.
In this appeal brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Derek Lamont Johnson appeals his judgment and sentences for petit theft and resisting an officer without violence. We affirm Johnson's judgment without further comment. We also affirm Johnson's sentences as orally pronounced.
However, during the pendency of this appeal, Johnson filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). One of Johnson's claims addressed a scrivener's error in the sentences due to a citation to an incorrect statute. The trial court denied that portion of the motion. The trial court failed to address Johnson's claim that special condition eighteen in the judgment and sentencing documents contained a timing requirement that was not orally pronounced. Because more than sixty days have passed, that portion of the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B) (requiring a rule 3.800(b) motion to be resolved and for a trial court ruling to occur within sixty days); Petterson v. State, 323 So.3d 348, 349 (Fla. 2d DCA 2021) (deeming motion denied where trial court failed to rule within sixty-day period). The trial court granted other claims relating to the written judgment and sentences not conforming to the oral pronouncement, but the record before this court does not reflect that amended judgment and sentencing documents were entered.
For the reasons explained herein, we remand for entry of amended judgment and sentencing documents that reflect the correction of the scrivener's errors as ordered by the trial court as well as the correction of the remaining scrivener's errors addressed in Johnson's motion.
BACKGROUND
In Johnson's rule 3.800(b)(2) motion, he raised three arguments: (1) the trial court failed to specifically orally pronounce a $127 fine and surcharge that appeared in the sentencing documents as part of the $500 figure that the trial court did reference; (2) the written judgment and sentencing documents contained requirements that Johnson pay investigative costs and complete a shoplifting course within ten months and also contained special condition eighteen which required completion of all of his probation conditions within ten months unless otherwise specified, yet the trial court failed to orally pronounce those time requirements; and (3) the trial court failed to cite the correct statute for the imposition of the $3 Teen Court Assessment cost. The trial court granted Johnson's motion in part, agreeing to strike the $127 fine and surcharge and to remove the time requirements related to payment of the investigative costs and completion of the shoplifting course. The trial court denied the portion of Johnson's motion addressing the $3 Teen Court Assessment cost, concluding that the judgment for fines and costs cited the statutory authority. The trial court did not address Johnson's claim that the trial court had failed to orally pronounce that he must complete all of his probation requirements within ten months unless otherwise specified as set forth in special condition eighteen in the sentencing documents. The trial court subsequently entered an order striking the $127 fine and surcharge and removing the time requirements for payment of the investigative costs and completion of the shoplifting course.
ANALYSIS
Although the trial court granted Johnson's rule 3.800(b)(2) motion in part and, thereafter, entered an order striking the fine and surcharge and removing the time requirements for payment of the investigative costs and completion of the shoplifting course, nothing in the record before this court reflects that amended judgment and sentencing documents or an amended judgment for fines and costs was ever entered in accordance with the trial court's orders. Thus we must remand for entry of such documents. See Rodriguez v. State, 310 So.3d 465, 465-66 (Fla. 2d DCA 2020) (affirming sentence but remanding for clerk to fulfill trial court's order striking discretionary costs which had not been orally pronounced where amended sentencing documents failed to fully effectuate trial court's order); Haddock v. State, 255 So.3d 994, 994 (Fla. 2d DCA 2018) (affirming sentence but remanding for correction of sentencing documents where trial court had granted rule 3.800(b) motion but where corrections had not been made). However, on remand, additional scrivener's errors must be corrected.
The denial of a rule 3.800(b)(2) claim addressing a minor sentencing error, such as the $3 Teen Court Assessment cost here, may be raised in an Anders brief. See Gedehomme v. State, 160 So.3d 533, 534 (Fla. 2d DCA 2015) (noting, in a case briefed pursuant to Anders, that a rule 3.800(b)(2) motion was the appropriate mechanism to address the "erroneous imposition of costs" and that it preserved the error for appellate review); see also Crowder v. State, 313 So.3d 704, 706 (Fla. 2d DCA 2020) (acknowledging that minor sentencing issues, such as a claim that a cost was improperly imposed, are permitted to be raised in Anders briefs). Here, the trial court listed "Teen Court Assessment" and a citation to the applicable county ordinance and section 939.19(2), Florida Statutes (2020), as the basis for the cost. However, the correct statutory authority for that cost is section 938.19(2), Florida Statutes (2020). Thus, we must remand for correction of this scrivener's error. See Echavarria v. State, 270 So.3d 527, 528 (Fla. 2d DCA 2019) (remanding for correction of a scrivener's error in citation to nonexistent statute); see also Morran v. State, 662 So.2d 1339, 1340 (Fla. 2d DCA 1995) (acknowledging that a citation to the incorrect statute can be a scrivener's error). The trial court must amend the judgment for fines and costs to reflect the correct statute.
Finally, we must remand due to the deemed denial of Johnson's rule 3.800(b)(2) claim that special condition eighteen in the written judgment and sentencing documents (requiring completion of all probation conditions within ten months unless otherwise specified) did not conform to the oral pronouncement. The transcript of the sentencing portion of Johnson's trial does not reflect that the trial court orally pronounced such a requirement. Where a written sentencing document fails to conform to an oral pronouncement, such an error is "a scrivener's error that may be corrected as a ministerial act." Diego Mateo v. State, 320 So.3d 982, 983 (Fla. 2d DCA 2021) (quoting Pittman v. State, 310 So.3d 970, 971 (Fla. 2d DCA 2020)). Thus, on remand, special condition eighteen must also be stricken from the written judgment and sentencing documents in order to conform to the oral pronouncement. Johnson need not be present for the correction of the scrivener's errors. See Diego Mateo, 320 So. 3d at 983.
CONCLUSION
We affirm Johnson's judgment and the sentences as orally pronounced. We remand with directions for the trial court to prepare, sign, and render proper judgment and sentencing documents that accurately reflect the sentences imposed on Johnson. See Pittman, 310 So. 3d at 972.
Affirmed; remanded with directions.
KHOUZAM and LUCAS, JJ. Concur.