Patrick v. State , 413 So. 2d 474 ( 1982 )

413 So. 2d 474 (1982)

John D. PATRICK, Appellant,
v.
STATE of Florida, Appellee.

No. 81-1325.

District Court of Appeal of Florida, Second District.

May 5, 1982.

Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Samuel R. Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.

HOBSON, Judge.

A jury convicted John Daniel Patrick of felony murder, the underlying felony of burglary and aggravated battery. The court sentenced him to concurrent prison terms for the felony murder, the underlying felony and the aggravated battery. During the sentencing hearing, the court agreed to award him credit for time served from the date of his arrest, July 25, 1980. However, the written order of judgment and sentence reflects credit from August 25, 1980. Patrick contends that the court erred in sentencing him for the felony murder and the underlying felony and in failing to award him credit for time served from the date of his original confinement. We agree with both contentions.

Section 775.021(4), Florida Statutes (1981), precludes imposition of multiple sentences for felony murder and the underlying felony. State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981).

A court's written order of judgment and sentence must not vary from its oral pronouncement of judgment and sentence. Cf. Gatti v. State, 324 So. 2d 193 (Fla. 2d DCA 1975) (cause remanded where the written order of judgment and sentence exceeded the sentence imposed in open court).

Accordingly, we remand the cause with directions to vacate the sentence for the underlying felony of burglary and to award credit for time served from July 25, 1980. We leave untouched the three convictions and the sentences for felony murder and aggravated battery.

REMANDED.

SCHEB, C.J., and CAMPBELL, J., concur.