Bueno v. State , 2015 Fla. App. LEXIS 1393 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed February 04, 2015.
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No. 3D14-1296
Lower Tribunal No. 09-35363
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Ariel Bueno,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Ariana Fajardo, Judge.
Ariel Bueno, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
PER CURIAM.
ON MOTION FOR CLARIFICATION
Upon the State’s motion for clarification, we withdraw our previously-
issued opinion and substitute the following opinion in its stead.
Appellant, Ariel Bueno, appeals from an order denying his motion to correct
illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). After
Bueno filed his initial brief, we directed the State to file an answer brief addressing
whether the judgment and sentence accurately reflects the oral pronouncement
made by the trial court at the time of sentencing. In its answer brief, the State
acknowledges that the judgment and sentence do not conform to the trial court’s
oral pronouncement1, but correctly points out that Bueno did not raise this issue in
the trial court, and we therefore do not consider it on appeal. Stangarone v. State,
94 So. 3d 652 (Fla. 4th DCA 2012).
As to the issues which Bueno did raise in his motion below and on appeal,
we find they are without merit and affirm the trial court’s order denying same. Our
affirmance is without prejudice to the filing, by either party, of a motion to correct
illegal sentence to the extent the written judgment and sentence conflicts with the
1 In its oral pronouncement (as set forth in the transcript of the plea colloquy),
Bueno agreed to, and the trial court imposed, a prison sentence of twenty-five
years as to Count One, and a consecutive term of fifteen years’ probation as to
Count Two. This oral pronouncement was consistent with the negotiated terms of
the written plea agreement between the State and Bueno, and was notated in the
Criminal Punishment Code Scoresheet setting forth the terms of the sentence
imposed. However, the written sentence reflects concurrent sentences of twenty-
five years’ prison as to both Count One and Count Two, and fails to include a
separate order of probation.
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oral pronouncement. See Fla. R. Crim. P. 3.800(a) (providing that “[a] court may
at any time correct an illegal sentence imposed by it . . . when it is affirmatively
alleged that the court records demonstrate on their face an entitlement to that relief
. . . .”);
Williams v. State, 957 So. 2d 600 (Fla. 2007) (holding that where it is apparent
from the face of the record that a written sentence conflicts with the oral
pronouncement, relief is properly sought by a motion to correct illegal sentence
under rule 3.800(a)). Affirmed without prejudice.
3