Jackson v. State
| Decision Date | 19 March 1993 |
| Docket Number | No. 91-03054,91-03054 |
| Citation | 615 So.2d 850 |
| Parties | 18 Fla. L. Weekly D786 Daniel Wayne JACKSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Kevin Briggs, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
Daniel Wayne Jackson appeals his sentences imposed for convictions of DUI and driving with a suspended license. We find the trial court's final oral pronouncement of sentence to be ambiguous. However, we also find that the trial court's intention is discernible from the record as a whole. Accordingly, we reverse only for a clearer pronouncement and written order.
At the conclusion of the sentencing hearing the trial court orally imposed the sentences as follows:
As to your conviction, under case number 91-557, Count I, driving under the influence, it is the sentence of this Court that you be placed on five years probation, with a special condition you spend three hundred and sixty-five days in the Lee County Jail, credit for time served.
As to the operating a motor vehicle while your license is suspended or revoked [Count II], it is the sentence of this Court that you be sentenced to a period of incarceration of one year in the Lee County Jail, that period of incarceration to run consecutive to the sentence already imposed.
The appellant argues that the result of this oral pronouncement is that the jail term of Count II will be served after the entire five-year probationary sentence of Count I. He argues that this is an impermissible gap in sentencing in violation of section 948.01(8), Florida Statutes (1989). 1 See Gill v. State, 550 So.2d 72 (Fla. 2d DCA 1989); see also Lanier v. State, 504 So.2d 501 (Fla. 1st DCA 1987).
The state, on the other hand, contends that the result of this oral pronouncement is that the appellant will serve the jail term of Count I, then the jail term of Count II, then the probationary period of Count I. Cf., Cox v. State, 468 So.2d 437 (Fla. 2d DCA 1985) (); accord Delk v. State, 510 So.2d 1209 (Fla. 2d DCA 1987). The written sentence is not helpful in clarifying the ambiguity of the oral pronouncement because it conflicts with both parties' interpretations.
A defendant's "sentence is properly what the trial court intended it to be." Gonzales v. State, 488 So.2d 610 (Fla. 4th DCA 1986). A full reading of the transcript of the sentencing hearing demonstrates that the trial court, both counsel, and the appellant himself, all understood that the court intended to impose the sentences in accord with the state's interpretation in this appeal. This sentencing structure comports with section 948.01(8). See also, Horner v. State, 597 So.2d 920 (Fla. 2d DCA 1992) (), 2 Cox. Because the trial court's oral pronouncement of sentence did not make plain this intention, we reverse and remand for resentencing in accord with this opinion. See, Stroder v. State, 599 So.2d 287 (Fla. 1st DCA 1992); Gonzales; see also Ferguson v. State, 460 So.2d 573 (Fla. 4th DCA 1984).
Finally, we note another error which must be corrected on remand. The imposition of 365 days in jail as the incarcerative portion of the probationary term in Count I exceeds by one day the maximum which may be served as a condition of probation. Villery v. Florida Parole & Probation Comm'n, 396 So.2d 1107 (Fla.1981), modified by statute on other grounds as recognized in Van Tassel v. Coffman, 486 So.2d 528 (Fla.1986); Sec. 948.03(5), Fla.Stat. (1989).
Reversed and remanded for resentencing.
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