Opinion
Case No. 4D00-4174.
Opinion filed June 20, 2001.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 97-15296 CF10A.
Anthony Williams, Avon Park, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Anthony Williams (Appellant) appeals from an order summarily denying the first three grounds of his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse as to ground "B." We affirm as to the other two grounds without further discussion.
Following a jury trial, Appellant was found guilty as charged of burglary of an unoccupied dwelling and grand theft. He was sentenced on the burglary count to thirty years as a violent career criminal, with a thirty-year mandatory minimum, and on the theft count to ten years as a habitual violent felony offender, with a ten-year mandatory minimum.
The order on appeal, granting Appellant's motion in part, reduced the ten-year mandatory minimum to five years.
In ground B of his motion, Appellant alleged that the court failed to orally declare him to be a habitual violent felony offender as to the second count, or pronounce mandatory minimum terms at the time of sentencing on either count. It is true that the transcript of Appellant's sentencing hearing, which the state attached to its response below in connection with the first ground, does not include an oral pronouncement of a mandatory minimum for either count. With respect to the second count, the trial court orally sentenced Appellant as a habitual felony offender, but not as a habitual violent felony offender.
A written sentence may be challenged as not conforming to the oral one in a rule 3.850 proceeding. See James v. State, 763 So.2d 471 (Fla. 3d DCA 2000), rev. denied, No. SC00-1753 (Fla. Jan. 22, 2001); Dukes v. State, 737 So.2d 595 (Fla. 1st DCA 1999); Ricks v. State, 725 So.2d 1205 (Fla. 2d DCA 1999), cause dismissed, SC94,927 ___ So.2d ___ (Fla. Feb. 25, 1999), and rev. denied, 732 So.2d 328 (Fla. 1999); Hampton v. State, 711 So.2d 200 (Fla. 5th DCA 1998).
We reverse the order on appeal to the extent it denied ground B and remand for an evidentiary hearing or the attachment of portions of the record that conclusively rebut this ground. In all other respects, we affirm.
Affirmed in part, reversed in part, and remanded.
GUNTHER, STEVENSON and TAYLOR, JJ., concur.