DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
RAFAEL A. CARRION,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D18-4289
September 22, 2021
Appeal from the Circuit Court for Lee County, Nicholas R.
Thompson, Judge.
Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe,
Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan S.
Tannen, Assistant Attorney General, Tampa, for Appellee.
SMITH, Judge.
Rafael A. Carrion appeals his judgment and sentences
rendered after a jury found him guilty of second-degree murder,
aggravated manslaughter, and aggravated child abuse. We affirm
Mr. Carrion's convictions and sentences without further comment.
We write only to address Mr. Carrion's argument that his judgment
must be corrected to indicate that he was found guilty by a jury—an
error that the State concedes. However, we decline to address this
issue on appeal because "it was not preserved either before this
appeal by objection in the trial court or while this appeal was
pending by the filing of a motion to correct sentencing error
pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)."
Perkins v. State,
53 So. 3d 1141, 1141 (Fla. 2d DCA 2011); see also
Del Rosario v. State,
306 So. 3d 327, 327 (Fla. 3d DCA 2020)
(affirming appellant's conviction and sentence without prejudice for
appellant to file a rule 3.800(b) motion to correct error in sentencing
order despite State's concession of error).1
1 We acknowledge that there are cases where appellate courts
have exercised their jurisdiction to include remanding with
directions that the trial court correct a scrivener's error in a
judgment; however, it is unclear from those cases whether a rule
3.800(b) motion had been filed below. See, e.g., Devlin v. State,
224
So. 3d 803, 804 (Fla. 2d DCA 2017) (remanding for trial court to
correct scrivener's error in judgment that incorrectly reflected the
defendant was convicted of the wrong offense without mention of
whether a rule 3.800(b) motion was filed); Willingham v. State,
48
So. 3d 173, 173 (Fla. 2d DCA 2010) (remanding for trial court to
2
While Mr. Carrion argues that the scrivener's error is an error
in the written judgment and, as such, does not constitute a
"sentencing" error that can be corrected by way of a rule 3.800(b)
motion, we disagree. The court commentary to rule 3.800 expressly
provides that "[a] scrivener's error in this context describes clerical
or ministerial errors in a criminal case that occur in the written
sentence, judgment, or order of probation or restitution." Fla. R.
Crim. P. 3.800 court's commentary to 1999 amendments (emphasis
added). The commentary then defines the term "scrivener's error"
as referring "to a mistake in the written sentence that is at variance
with the oral pronouncement of sentence or the record but not
those errors that are the result of a judicial determination or error"
correct written judgment that erroneously indicated the defendant
entered a no contest plea where the record revealed he was
convicted after a jury trial); Taylor v. State,
242 So. 3d 1203, 1204
(Fla. 5th DCA 2018) (remanding to the trial court to correct a
scrivener's error in the judgment which failed to indicate the
defendant was tried by a jury and found guilty); Bartee v. State,
741
So. 2d 644, 645 (Fla. 4th DCA 1999) (affirming conviction and
sentence but remanding for trial court to enter a correct judgment
that reflects that the defendant was tried by a jury rather than that
he "entered a plea of nolo contendere"). However, we distinguish
those cases from the case before us where Mr. Carrion concedes
that he has not filed a rule 3.800(b) motion with the trial court to
present the court with the opportunity to correct the error.
3
and cites a series of cases with examples of scrivener's errors falling
under that definition—including two that specifically indicated
corrections within a written judgment.
Id. (first citing Allen v. State,
739 So. 2d 166 (Fla. 3d DCA 1999) (remanding for the correction of
a "scrivener's error" in the written order that adjudicated the
appellant in contempt for "jailing polygraph exam" where the record
revealed appellant was held in contempt for her failure to testify for
the state pursuant to a trial subpoena); then citing Florczak v.
State,
712 So. 2d 467, 467 (Fla. 4th DCA 1998) (remanding for
correction of a "scrivener's error" where the appellant was acquitted
of grand theft but the written judgment stated otherwise)); see also
Ashley v. State,
850 So. 2d 1265, 1268 n.3 (Fla. 2003) (referencing
rule 3.800(b) and explaining "we have defined scrivener's error as
those 'clerical or ministerial errors in a criminal case that occur in
the written sentence, judgment, or order of probation or restitution'
" (citing Amends. to Fla. R. of Crim. P. 3.111(e) & 3.800 & Fla. R.
App. P. 9.020(h), 9.140, & 9.600,
761 So. 2d 1015, 1023 (Fla.
1999))).
4
Accordingly, we affirm Mr. Carrion's judgment and sentences
without prejudice to Mr. Carrion filing a timely motion to correct
what the State concedes is a scrivener's error in the judgment.
Affirmed.
ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.
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