Brown v. State

Third District Court of Appeal
State of Florida

Opinion filed July 19, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1902
Lower Tribunal Nos. 01-14494, 01-19356, 01-19357
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Dale Brown,
Appellant,

vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public
Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.

Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.

LAGOA, J.
 Dale Brown (“Brown”) appeals from an order revoking his probation and

sentencing him to three years in state prison followed by fifteen years of probation.

Because Brown failed to raise his claim of sentencing error below, we affirm

without prejudice to Brown filing an appropriate motion under Florida Rule of

Criminal Procedure 3.800(a).

I. FACTUAL AND PROCEDURAL HISTORY

In 2002, Brown pled guilty in case numbers F01-14494, F01-19356, and

F01-19357 to numerous counts of lewd or lascivious molestation against a victim

under the age of twelve and lewd or lascivious conduct with a victim under the age

of sixteen. Brown was sentenced to three years in prison followed by fifteen years

of probation.

In 2015, the State filed an affidavit of violation of probation claiming that

Brown had been arrested for solicitation to commit lewd or lascivious conduct and

thereby violated a term of his probation. The trial court subsequently conducted a

probation violation hearing and found that Brown violated his probation. Of

significance to this appeal, the trial court at the sentencing hearing orally

pronounced the following two different sentences:

I think a fair sentence would be three years in Florida
[s]tate prison for the defendant followed by fifteen years
of probation . . . . I think that would be a fair sentence
right now . . . .

....

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 So that is my sentence, 3 years Florida [s]tate prison,
credit for time served, followed by 10 years of probation.

The written order revoking Brown’s probation and imposing sentence reflects that

the trial court sentenced Brown in accordance with the first of its two oral

pronouncements—three years in state prison followed by fifteen years of

probation. Brown appeals from the final order revoking his probation and

imposing sentence.

II. ANALYSIS

On appeal, Brown argues that because the trial court’s oral pronouncement

of two different sentences is ambiguous and internally inconsistent, this Court

should either impose the lower sentence or remand for the trial court to clarify the

sentence.

It is well established that “a court’s oral pronouncement of sentence controls

over the written document.” Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003);

accord Williams v. State, 957 So. 2d 600, 603 (Fla. 2007). For that reason,

“[w]here there is an ambiguity in the oral pronouncement, the proper remedy is for

the trial court to clarify the sentence imposed.” Chapman v. State, 14 So. 3d 273,

274 (Fla. 5th DCA 2009); see also Franklin v. State, 969 So. 2d 399, 401 (Fla. 4th

DCA 2007) (remanding trial court’s denial of post-conviction motion with

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directions to resolve conflict between written sentence and ambiguous, inconsistent

oral pronouncements made at sentencing).

The State concedes that the trial court orally pronounced two different

sentences, one of which conflicts with the written sentenced imposed, and that

clarification is required. The State asserts, however, that Brown’s failure to raise

the error below precludes this Court from considering the issue on direct appeal,

and that the only remedy available to Brown is through a rule 3.800(a) motion.

We agree. “A sentencing error may not be raised on appeal unless the alleged

error has first been brought to the attention of the lower tribunal: (1) at the time of

sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure

3.800(b).” Fla. R. App. P. 9.140(e).

A written sentencing order that deviates from the oral pronouncement of

sentence constitutes a “sentencing error” subject to rule 3.800(b). See Jackson v.

State, 983 So. 2d 562, 572 (Fla. 2008) (recognizing a written order which deviates

from the oral pronouncement as a “sentencing error” subject to rule 3.800(b)).

Here, it is undisputed that Brown did not raise a contemporaneous objection before

the trial court at the time of sentencing. Additionally, Brown did not file a timely

rule 3.800(b) motion in the trial court raising the inconsistency in the trial court’s

oral pronouncement and the written sentence.1 Because Brown did not challenge

his sentence in the trial court, this Court cannot address his claim on direct appeal.

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 We find, however, that Brown may seek relief in the trial court by filing a

legally sufficient motion pursuant to rule 3.800(a). See Williams, 957 So. 2d at

601 (“[A] claim asserting a discrepancy between an oral and written sentence is

cognizable in a rule 3.800(a) proceeding for correction of an illegal sentence.”);

Lluis v. State, 187 So. 3d 918 (Fla. 3d DCA 2016) (affirming defendant’s

conviction and sentence without prejudice to the filing of a rule 3.800(a) motion

where written sentence did not conform to oral pronouncements and stating that

“the trial court must correct the written sentences pursuant to a Rule 3.800(a)

motion”); Robertson v. State, 134 So. 3d 548, 549 (Fla. 3d DCA 2014) (“Affirmed

without prejudice to the filing of a Florida Rule of Criminal Procedure 3.800(a)

motion to correct the sentence imposed to accurately reflect the trial court’s oral

pronouncement.”); Sanders-Bashui v. State, 124 So. 3d 1041, 1042 (Fla. 3d DCA

2013) (affirming defendant’s sentence on direct appeal without prejudice to her

filing a rule 3.800(a) motion in the trial court where State conceded claim was

meritorious but defendant did not challenge sentence in trial court).

As the State concedes that the written order does not conform to the trial

court’s oral pronouncements, we affirm the trial court’s order revoking probation

1Rule 3.800(b) permits the filing of a motion to correct “any sentencing error”
during the time provided for the filing of a notice of appeal, or, if an appeal is
pending, before the first brief is filed.

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and the resulting sentence without prejudice to Brown filing in the trial court a

legally sufficient motion under Florida Rule of Criminal Procedure 3.800(a).

Affirmed without prejudice.

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