WILLIE SOL v. STATE OF FLORIDA , 268 So. 3d 749 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIE SOL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1312
[January 9, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2015-CF-
011094-AXXX-MB.
Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Brooke Moody, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Willie Sol appeals his sentence after entering an open plea to burglary
of a structure, grand theft, and possession of burglary tools. Sol asserts
four issues of trial court error, one of which the State concedes. Because
three of the issues raised by Sol are without merit, we affirm the trial
court’s ruling as to those issues without discussion. As to the fourth issue,
we agree with Sol and the State that we should remand for correction of
Sol’s sentence on the burglary charge.
The trial court sentenced Sol as a habitual felony offender on the
burglary count, but did “not believe that it is necessary for the protection
of the public to sentence [Sol] to an enhanced sentence.” However, the
written sentencing order for the burglary count stated that:
The Defendant is adjudicated a habitual felony offender and
has been sentenced to an extended term in accordance with
the provisions of section 775.084(4)(a), Florida Statutes. The
requisite findings by the Court are set forth in a separate order
or stated on the record in Open Court.
(emphasis added).
Section 775.084, Florida Statutes, states that a “habitual felony
offender” is “a defendant for whom the court may impose an extended term
of imprisonment.” § 775.084(1)(a), Fla. Stat. (2015) (emphasis added).
Section 775.084 also states that the trial “court must sentence the
defendant as a habitual felony offender . . . unless the court finds that
such sentence is not necessary for the protection of the public.”
§ 775.084(3)(a)6., Fla. Stat. (2015) (emphases added).
“Any difference between the trial court’s oral pronouncement and its
written order is resolved in favor of the oral pronouncement.” Harder v.
State, 14 So. 3d 1291, 1293 (Fla. 1st DCA 2009). Therefore, as the State
agrees, the case is remanded for the trial court to correct the error in the
written sentence and delete the language for an enhanced sentence as a
habitual felony offender. We agree with the State that Sol’s presence is
not necessary to correct this scrivener’s error. See Frost v. State, 769 So.
2d 443, 444 (Fla. 1st DCA 2000) (“Accordingly, this case is remanded with
instructions for the written sentence to be conformed to the oral
pronouncement. Upon remand, appellant need not be present for the
correction of the sentence since correction is merely a ministerial act.”).
Affirmed and remanded with instructions.
TAYLOR and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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