Byrd v. State, 4D02-1776.
| Decision Date | 03 September 2003 |
| Docket Number | No. 4D02-1776.,4D02-1776. |
| Citation | 853 So.2d 1103 |
| Parties | Thomas Jerome BYRD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
Thomas Byrd ("Byrd") was charged by information with one count of driving under the influence with priors, one count of driving while license suspended-habitual offender, and one count of driving while license suspended or permanently revoked. He entered an open plea of no contest to count one, driving under the influence with priors. Part of the agreement was that the offense would be treated as a first offense. Byrd also entered a plea of no contest on count two and count three was nolle prosed.
After commenting on Byrd's extensive record, and agreeing that Byrd needed help with his addiction, the court orally pronounced his sentence. As to count II, the trial court imposed a sixty month sentence, with the sentence to be suspended after the completion of thirty-six months if Byrd was admitted to an in-patient rehabilitation facility. Byrd would then be placed on drug offender probation and be required to remain in inpatient treatment for six months followed by one year of probation. Byrd was also sentenced to one year probation on count I, the driving under the influence charge. Initially the judge commented that the probation terms would be served concurrently. However, defense counsel commented that the sentence would be illegal if the terms were to be served concurrently and the state attorney stated that: "It's got to be consecutive." After asking how he should word the order, the judge ordered that the probation be served consecutively. On the written sentence order, the court ordered that Byrd serve 280 days on count one followed by one year of probation.
Initially, Byrd contends the trial court erred in sentencing him to 280 days imprisonment, followed by one year probation on count I, driving under the influence. The state agrees that the sentence violates the legal maximum sentence of 180 days pursuant to section 316.193, Florida Statutes, but that the trial court's oral pronouncement would not. This court has recognized that a trial court's oral pronouncement controls over a written sentencing order. See, e.g., Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982)
. As a result we remand this case to the trial court and instruct that the written order be corrected.
Byrd next argues that on remand the trial court should have the opportunity to revisit the issue of whether the two probationary periods should be concurrent or consecutive. We agree. Byrd accurately points out that the trial court initially imposed the two probation periods to run concurrently. However, at the hearing,...
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Richardson v. State
...the Department of Corrections because the Department lacks such sentencing authority. § 921.16(1), Fla. Stat. (2004); Byrd v. State, 853 So.2d 1103 (Fla. 4th DCA 2003); McCarthur v. State, 766 So.2d 292 (Fla. 4th DCA 2000)(holding that the trial court must exercise its discretion to sentenc......
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Glick v. Glick, 4D03-2961.
...that hearing appears in the record. A trial court's oral pronouncement must control over a later written order. E.g. Byrd v. State, 853 So.2d 1103, 1105 (Fla. 4th DCA 2003). The written July 1st order does not accurately reflect the May 30th At the May 30th hearing, the trial court made sev......
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Wilson v. State, 3D03-1505.
...the 59.25 months in this case is to run concurrent with or consecutive to the seven year sentence in 94-9233. See Byrd v. State, 853 So.2d 1103 (Fla. 4th DCA 2003)(remanding with instructions for the trial court to exercise its discretion and reconsider the imposition of a consecutive sente......
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Henderson v. State, 4D03-3339.
...second amended concession of error, this case is reversed and remanded to the trial court for resentencing. See Byrd v. State, 853 So.2d 1103 (Fla. 4th DCA 2003). REVERSED AND STONE, SHAHOOD and TAYLOR, JJ., concur. ...