Summary
affirming unpreserved sentencing error without prejudice to appellant's right to file appropriate postconviction motion
Summary of this case from Hubbard v. StateOpinion
Nos. 2D13–4245 2D13–4247.
2014-09-24
McKinsie Alexander LYONS, Appellant, v. STATE Of Florida, Appellee.
Appeal from the Circuit Court for Hillsborough County; Caroline J. Tesche, Judge. Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
Appeal from the Circuit Court for Hillsborough County; Caroline J. Tesche, Judge.
Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
SILBERMAN, Judge.
McKinsie Alexander Lyons seeks review of convictions in two cases for carrying a concealed firearm; obstructing an officer without violence; driving while license cancelled, suspended, or revoked (second offense); and felonious possession of a firearm. Lyons entered negotiated pleas to the charges while reserving the right to appeal the denial of his motions to dismiss and suppress. Counsel filed briefs pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In our independent review of the record, we discovered a discrepancy between the sentences that were orally pronounced and the written sentences. The trial court orally pronounced sentences of 41.625 months in prison, but the written sentences impose 41.65 months in prison. Because the oral pronouncement controls, the written sentences are erroneous. See Williams v. State, 957 So.2d 600, 603 (Fla.2007). However, Lyons has not preserved this issue for review by filing a motion to correct sentencing error. See Woodard v. State, 6 So.3d 726, 727 (Fla. 2d DCA 2009). Accordingly, we affirm without prejudice to any right Lyons may have to seek postconviction relief on this issue. See id.
Affirmed. WALLACE and BLACK, JJ., Concur.