Howren v. State, 86-868
| Decision Date | 07 August 1987 |
| Docket Number | No. 86-868,86-868 |
| Citation | 510 So.2d 1142,12 Fla. L. Weekly 1927 |
| Parties | 12 Fla. L. Weekly 1927 Victor Alan HOWREN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Theda R. James, Asst. Atty. Gen., Tampa, for appellee.
Appellant Victor Howren appeals his sentence for burglary of a dwelling and grand theft. He raises four points in this appeal but we find merit in only two of those points.
At the appellant's jury trial, the appellant's companion testified that he and the appellant broke into the victim's mobile home and stole a Russian pistol, some change, and some marijuana. The officer who arrested the men and interviewed the appellant testified that the appellant explained how they had entered the mobile home and what they had stolen from it. At the conclusion of trial, the jury found the appellant guilty as charged of burglary of a dwelling and grand theft.
The appellant first argues that the written order placing him on community control fails to conform to the trial court's oral pronouncement at sentencing. At the appellant's sentencing hearing, the court announced that The written order placing the appellant on community control reads "[i]t is hereby ordered and adjudged that you be confined in the County Jail for a term of Three Hundred & Sixty-Four Days ... that after you have served 364 of said term, you shall be placed in a community control program for a period of two (2) years...."
A written sentence must not vary from the oral pronouncement of that sentence. Beal v. State, 478 So.2d 401 (Fla. 2d DCA 1985). The written order of community control in this case varies from the oral pronouncement of community control because it directs that the appellant be placed on two years' community control after he has served 364 days in jail, whereas the oral pronouncement directed that the appellant be placed on two years' community control and serve 364 days in jail during those two years. Consequently, we must remand this cause for correction of the written order to conform to the trial court's oral pronouncement.
The appellant next argues that there is no factual support for the order setting restitution at $1500 and that restitution should be apportioned between him and his companion. At the hearing at which the appellant's presentence investigation report was considered, the appellant's counsel stated that, with regard to the report's recommendation that restitution be set at...
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Hamrick v. State, 94-0859
...the amount of restitution it was ordering appellant to pay; therefore, this issue is properly before this court. See Howren v. State, 510 So.2d 1142, 1144 (Fla. 2d DCA 1987). The imposition of restitution without notice or a hearing is error. Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA......
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