Morgan v. State, 78-438

• Decision Date: 01 November 1978
• Docket Number: No. 78-438,78-438
• Citation: 365 So.2d 172
• Parties: Harry N. MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 172

365 So.2d 172

Harry N. MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 78-438.

District Court of Appeal of Florida, Second District.

Nov. 1, 1978.

Rehearing Denied Dec. 11, 1978.

Jack Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.

OTT, Judge.

Harry Ned Morgan, Jr. appeals his sentences for two counts of burglary and one count of escape. Only one of the issues raised merits discussion here: whether there is a discrepancy between the trial court's announced intention and the sentence actually imposed. We find there is such a discrepancy and remand for reconsideration and any concomitant correction of the sentence found necessary.

The trial judge announced at the conclusion of the sentencing hearing that he intended appellant serve a total of twenty years in prison. In the thereafter filed written judgment and sentence appellant was given two consecutive fifteen year sentences and one five year sentence concurrent with one of the fifteen year sentences a total of thirty years, not twenty. ¹ The record fails to disclose any change of mind or other explanation for this discrepancy. The trial court should clarify its intent and, if necessary, correct the sentence accordingly.

We find no merit in the other points raised by appellant.

The convictions are affirmed but the cause is remanded for the purpose herein stated. The defendant need not be present for this purpose.

HOBSON, A. C. J., and DANAHY, J., concur.

1 Appellant received fifteen years on each of two burglary counts. Since he was charged in both counts with burglary of a dwelling, these offenses were second degree felonies, Section 810.02(3), Fla.Stat. (1977), punishable by up to fifteen years in prison. Section 775.082(3)(c), Fla.Stat. (1977). Appellant's five year sentence on the escape charge, which is also a second degree felony, Section 944.40, Fla.Stat. (1977), is also within the statutory maximum set by Section 775.082.