Summary
affirming and remanding with directions that trial court correct written judgment and sentence to reflect oral pronouncement because inconsistencies between oral pronouncement and written judgment and sentence, which reflected conviction on more counts and different sentence, constituted fundamental errors
Summary of this case from Mason v. StateOpinion
Case No. 96-4648
Opinion filed November 5, 1997.
An appeal from the Circuit Court for Walton County. Lewis R. Lindsey, Judge.
Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; J. Ray Poole, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, appellant complains about the trial court's failure to give a requested jury instruction, and about certain inconsistencies between the oral pronouncement of the judgment and sentence and the written documents. We affirm appellant's convictions and sentences, as orally pronounced, for aggravated battery and one count of resisting arrest without violence. However, we remand with directions that the trial court correct the written judgment and sentence to reflect the oral pronouncement — i.e., that appellant was convicted of only one count of resisting arrest without violence; and that the sentence for that offense was one year, to be served concurrently with the sentence for aggravated battery. We reject the state's argument that these errors were not preserved, as required by section 924.051(3), Florida Statutes (Supp. 1996), because they are "fundamental." See Robinson v. State, 667 So.2d 384 (Fla. 1st DCA 1995) (conviction of crime that did not occur is fundamental error); Sanders v. State, 698 So.2d 377 (Fla. 1st DCA 1997) (illegal sentence constitutes fundamental error).
AFFIRMED and REMANDED, with directions.
MINER, ALLEN and WEBSTER, JJ., CONCUR.