Kitchen v. State

Full title: JOHN FREDERICK KITCHEN, Appellant, v. STATE OF FLORIDA, Appellee.

Court: Florida Court of Appeals, Fifth District

Date published: Feb 18, 2022

No. 5D21-2875 (Fla. Dist. Ct. App. Feb. 18, 2022)

Opinion

5D21-2875

02-18-2022

JOHN FREDERICK KITCHEN, Appellant, v. STATE OF FLORIDA, Appellee.

John Frederick Kitchen, Lake City, pro se. No Appearance for Appellee.

PER CURIAM.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

3.800 Appeal from the Circuit Court for Brevard County LT Case No. 05-2013-CF-054566-A-X, Charles G. Crawford, Judge.

John Frederick Kitchen, Lake City, pro se.

No Appearance for Appellee.

PER CURIAM.

Appellant, John Frederick Kitchen, appeals the postconviction court's denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Concluding that Appellant's sentence is legal, we affirm.

In 2014, the trial court sentenced Appellant as both a habitual violent felony offender (HVFO) and as a prison releasee reoffender (PRR). In his rule 3.800(a) motion, Appellant claims that the trial court imposed equal terms of incarceration for each designation in violation of section 775.082(9)(c) of Florida's Prison Release Reoffender Statute. The transcript from Appellant's sentencing, however, refutes his claim and clearly shows that Appellant was sentenced as an HVFO to 76.2 months in prison subject to the five-year minimum mandatory sentence and to the five-year PRR minimum mandatory sentence. Because the HVFO sentence of 76.2 months is longer than the five-year PRR minimum mandatory sentence, Appellant cannot show that his present sentence as both a PRR and HVFO is illegal.

The trial court's written sentencing order, however, is not as clear as the court's oral pronouncement. Therefore, we remand for correction of the written sentence so that it reflects the oral pronouncement and clearly distinguishes between the HVFO sentence of 76.2 months and the PRR sentence of five years. See, e.g., Webb v. State, 302 So.3d 1077, 1079 (Fla. 5th DCA 2020) ("When there is a conflict between the oral pronouncement and the written sentence, the oral pronouncement controls."); see also Simmons v. State, 286 So.3d 877 (Fla. 5th DCA 2019) (affirming defendant's convictions and sentences but remanding for correction of clerical error in written judgment).

AFFIRMED and REMANDED for entry of a corrected order that comports with the trial court's oral pronouncement.

LAMBERT, C.J., EDWARDS and NARDELLA, JJ., concur.