IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL WOLCOFF, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0742
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 18, 2016.
An appeal from an order of the Circuit Court for Duval County.
Jack M. Schemer, Judge.
Michael Wolcoff, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
The appellant appeals the denial of a motion to correct illegal sentence filed
pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of
the appellant’s request for prison credit without further discussion. However, we
reverse and remand for the trial court to correct the written sentence.
The appellant notes that his plea, and the oral pronouncement of sentence,
called for the sentence in this case to be imposed concurrently to those imposed in
Putnam County case 2011CF1320 and Clay County case 2012CF637. However,
the written judgment and sentence does not indicate whether the sentence is to run
concurrently or consecutively to any other sentences. Thus, the appellant alleges
that the Department of Corrections is interpreting his sentence in this case as
running consecutively to those imposed in cases 2011CF1320 and 2012CF637.
The Department’s interpretation of the sentencing documents appears to be correct,
because when the written judgment and sentence is silent on the matter, and the
sentences were imposed for crimes “charged in separate informations,” the
presumption is that the sentences are consecutive. See § 921.16(1), Florida
Statutes (2001) (“Sentences of imprisonment for offenses not charged in the same
indictment, information, or affidavit shall be served consecutively unless the court
directs that two or more of the sentences be served concurrently.”) (emphasis
added); Bruce v. State, 679 So.2d 45, 46-47 (Fla. 3d DCA 1996) (“Where the trial
judge fails to specify whether sentences imposed for offenses not charged in the
same information or indictment be served concurrently, section 921.16(1) dictates
that such sentences be served consecutively.”). It is clear from the written plea
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agreement and the oral pronouncement of sentence that the sentence in this case
was meant to be imposed concurrently with any sentences imposed in case
2011CF1320 and case 2012CF637. Thus, we reverse and remand, in part, for the
trial court to amend the sentencing documents to reflect that the sentence imposed
in this case is to run concurrently with any sentences imposed in cases
2011CF1320 and 2012CF637. See Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
(holding that oral pronouncement of sentence controls over written documents).
As this involves the correction of a scrivener’s error, the appellant need not be
present. See Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013) (holding that a
defendant need not be present at resentencing if the error to be corrected is purely
ministerial or clerical, and involves no exercise of the court's discretion; ministerial
or clerical corrections include changing the written sentence to conform to the oral
pronouncement).
AFFIRMED in part, REVERSED AND REMANDED in part with
directions.
BILBREY, KELSEY, and M.K. THOMAS, JJ., CONCUR.
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