849 So. 2d 1112

Ruben GONZALEZ, Appellant, v. STATE of Florida, Appellee.

No. 5D02-1638.

District Court of Appeal of Florida, Fifth District.

June 20, 2003.

Rehearing Denied July 23, 2003.

*1113James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Ruben Gonzalez appeals his conviction and sentences for lewd act on a child, using a child in a sexual perfor-manee, and unlawful possession of materials depicting sexual performance by a child.1 After the jury rendered its verdict finding Gonzalez guilty of all three counts, the trial court orally sentenced him as follows: Count I — 141 months in prison, Count II — ten years on sex offender probation to run consecutive to the prison sentence in Count I, and Count III — five years on sex offender probation to run concurrently with the probation in Count II. However, contrary to the oral sentence imposed, the final written order imposed consecutive sentences for Counts II and III.

Gonzalez subsequently filed a motion to correct the sentence, asserting that: 1) the maximum possible prison sentence in Count I should have been 112.875 months, and 2) the written probation order reflected “consecutive” probation terms instead of the “concurrent” terms announced in open court. The trial court granted the motion as to both issues. An amended sentencing order reflects the correction as to the prison term, but does not change the “consecutive” probation terms to “concurrent.”

Gonzalez contends, and the State concedes, that the oral pronouncement of sentence controls. Ashley v. State, 28 Fla. L. Weekly S18, S20, — So.2d -, -, 2003 WL 60564 (Fla. Jan. 9, 2003) (recognizing and affirming the “longstanding principle of law — that a court’s oral pro*1114nouncement of sentence controls over the written document.”); Shipman v. State, 842 So.2d 1021 (Fla. 5th DCA 2003); see also Taylor v. State, 840 So.2d 371 (Fla. 1st DCA 2003) (remanding to the trial court to enter a probation revocation order consistent with that orally pronounced in court); Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003) (remanding for entry of a proper revocation order when “the written order of revocation of probation [was] not consistent with the trial court’s oral pronouncement.”).

While we affirm Gonzalez’ convictions, we remand for correction of the sentence to reflect the concurrent instruction pronounced in open court.

AFFIRMED and REMANDED to correct the written order of sentence.

SHARP, W., and PALMER, JJ., concur.

Gonzalez v. State
849 So. 2d 1112

Case Details

Name
Gonzalez v. State
Decision Date
Jun 20, 2003
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849 So. 2d 1112

Jurisdiction
Florida

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