5D05-2275 Henry Brown v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2275

Case Date: 09/24/2007

Preview:IN THE DISTRICT COURT F APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

HENRY BROWN, JR., Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed September 28, 2007 Appeal from the Circuit Court for Flagler County, Kim C. Hammond , Judge. James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. GRIFFIN, J. Appellant, Henry Brown, Jr. ("Brown"), appeals his sentence for aggravated assault and aggravated battery. We reverse. Brown was charged by information with one count of attempted second-degree murder (Count I) and one count of aggravated battery with a deadly weapon causing Case No. 5D05-2275

great bodily harm (Count II). Brown was convicted by a jury of the lesser included offense of aggravated assault in Count I and aggravated battery as charged in Count II. 1 A sentencing hearing was conducted on June 24, 2005. Brown's scoresheet reflected a sentencing range between 95.25 months and twenty years of incarceration. During the hearing, the State asked for the maximum available sentence of twenty years based on Brown's violent prior criminal record. 2 In response to a question from the Court, the prosecutor replied: The most I could do on count one, Your Honor, would be the 15 years because it's a second-degree felony. Brown then argued for a downward departure or a term of supervision. Thereafter, consistent with the prosecutor's prior statement as to the maximum available sentence for Count I, the trial court orally pronounced the following sentence: It's the sentence of this court that on count one he be sentenced to 14 years in the Department of Corrections. On count two be [sic] sentenced to five years in the Department of Corrections. That will be concurrent rather than consecutive, and he will be given credit for time served. The problem, however, was that it was Count II that carried a fifteen year statutory maximum. Count I was subject to a five year maximum sentence. The written sentence initially comported with the oral pronouncement; however, apparently on the same day, the sentencing judge changed the sentence to reflect five years on Count I and fourteen years on Count II.
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Aggravated assault is a third-degree felony punishable by a maximum of five years' incarceration and aggravated battery is a second-degree felony punishable by a maximum of fifteen years' incarceration. Brown's prior record includes, among others, an escape, an aggravated assault with a deadly weapon, two domestic violence batteries, and two drug convictions. 2
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Brown then filed a rule 3.800(b) motion3 to correct an illegal sentence, arguing that the oral pronouncement of the fourteen-year sentence for Count I was illegal. The State countered that, under this Court's opinion in Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005), the sentence could lawfully be "restructured" to reflect a sentence of five years on Count I and fourteen years on Count II. The State also filed its own rule 3.800(b) motion to correct sentence. T he trial judge, Kim C. Hammond, entered an order granting the State's motion, noting in the order that the sentencing judge, Senior Judge Hitt, had corrected the written sentence on the day of sentencing. The order states: At sentencing ... the Court initially indicated 14 years on the aggravated assault and 5 years on aggravated battery on the written judgment and sentence, however that was changed to reflect the Court's oral pronouncement of five years on the aggravated assault and 14 years on the aggravated battery.[4] Judge Hitt initialed these corrections on the written judgment and sentence. ... Therefore, it was the intent of the Court to sentence [Brown] to 14 years on the aggravated battery and 5 years for aggravated assault. The State's Motion being timely filed pursuant to Florida Rule of Criminal Procedure 3.800(b) and specifically alleging a correctable scrivener's error it is hereby ORDERED AND ADJUDGED the State's Motion to Correct Sentence is Granted, nunc pro tunc, sentencing [Brown] to 5 years on count one, aggravated assault and 14 years on count two, aggravated battery. (emphasis added) (footnote supplied).

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Fla. R. Crim. P. 3.800(b).

The order rendered by Judge Hammond misapprehends the facts. The transcript clearly shows that the orally pronounced sentence was fourteen years for Count I and five years for Count II. This does not appear to be a scrivener's error as the order indicates.

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On appeal, Brown argues that his fourteen-year sentence for Count I is illegal because it exceeds the statutory maximum, which in this case is 95.25 months, the "lowest permissible" sentence under the scoresheet. 5 See Butler v. State, 838 So. 2d 554, 556 (Fla. 2003). He also claims the court was not permitted to increase his sentence under Count II because the sentence imposed was legal and he already had begun to serve the sentence. The State says that under Sands it was permissible for the lower court to restructure Brown's sentence so long as his aggregate sentence did not exceed the maximum lawful sentence and is not vindictive. It is well established that a court's oral pronouncement of a sentence controls over the written sentencing document. See Williams v. State , 957 So. 2d 600, 603 (Fla. 2007); Ashley v. State , 850 So. 2d 1265, 1268 (Fla. 2003); Justice v. State , 674 So. 2d 123, 126 (Fla. 1996). When the written sentence results in a sentence that is more severe than the sentence announced in court, the sentence is illegal and must be corrected. The issue in this case is whether it was permissible for the court to amend Brown's written sentence, contrary to the oral pronouncement, by switching the sentences for Count I and Count II. We begin by concluding that our Sands decision has no application to this case. The Sands court simply followed prior precedent that permits a court to restructure a sentence in a manner that effectuates the governing plea agreement. In reaching its decision, the Sands court stated: We acknowledge that the outcome here may not be to [appellant's] liking. After all, it is quite obvious that the essence of his complaint is not that he has been deprived of the benefit of his bargain; rather, it is that he did not receive
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