Florida District Courts of Appeal, 2015

Bueno v. State

Bueno v. State
Florida District Courts of Appeal · Decided February 4, 2015 · Rothenberg, Emas, Fernandez
156 So. 3d 587; 2015 Fla. App. LEXIS 1393; 2015 WL 446274 (Southern Reporter, Third Series)

Bueno v. State

Opinion

ON MOTION FOR CLARIFICATION

PER CURIAM.

Upon the State’s motion for clarification, we withdraw our previously-issued opinion and substitute the following opinion in its stead.

Appellant, Ariel Bueno, appeals from an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). After Bueno *588 filed his initial brief, we directed the State to file an answer brief addressing whether the judgment and sentence accurately reflects the oral pronouncement made by the trial court at the time of sentencing. In its answer brief, the State acknowledges that the judgment and sentence do not conform to the trial court’s oral pronouncement 1 , but correctly points out that Bueno did not raise this issue in the trial court, and we therefore do not consider it on appeal. Stangarone v. State, 94 So.3d 652 (Fla. 4th DCA 2012).

As to the issues which Bueno did raise in his motion below and on appeal, we find they are without merit and affirm the trial court’s order denying same. Our affirmance is without prejudice to the filing, by either party, of a motion to correct illegal sentence to the extent the written judgment and sentence conflicts with the oral pronouncement. See Fla. R. Crim. P. 3.800(a) (providing that “[a] court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief....”); Williams v. State, 957 So.2d 600 (Fla. 2007) (holding that where it is apparent from the face of the record that a written sentence conflicts with the oral pronouncement, relief is properly sought by a motion to correct illegal sentence under rule 3.800(a)). Affirmed without prejudice.

1

. In its oral pronouncement (as set forth in the transcript of the plea colloquy), Bueno agreed to, and the trial court imposed, a prison sentence of twenty-five years as to Count One, and a consecutive term of fifteen years' probation as to Count Two. This oral pronouncement was consistent with the negotiated terms of the written plea agreement between the State and Bueno, and was notated in the Criminal Punishment Code Score-sheet setting forth the terms of the sentence imposed. However, the written sentence reflects concurrent sentences of twenty-five years' prison as to both Count One and Count Two, and fails to include a separate order of probation.

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