Lyons v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
McKINSIE ALEXANDER LYONS, )
)
Appellant, )
)
v. ) Case Nos. 2D13-4245
) 2D13-4247
STATE OF FLORIDA, )
) CONSOLIDATED
Appellee. )
___________________________________)
Opinion filed September 24, 2014.
Appeal from the Circuit Court for
Hillsborough County; Caroline J. Tesche,
Judge.
Howard L. Dimmig, II, Public Defender,
and Allyn M. Giambalvo, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.
SILBERMAN, Judge.
McKinsie Alexander Lyons seeks review of convictions in two cases for
carrying a concealed firearm; obstructing an officer without violence; driving while
license cancelled, suspended, or revoked (second offense); and felonious possession of
a firearm. Lyons entered negotiated pleas to the charges while reserving the right to
appeal the denial of his motions to dismiss and suppress. Counsel filed briefs pursuant
to Anders v. California, 386 U.S. 738 (1967). In our independent review of the record,
we discovered a discrepancy between the sentences that were orally pronounced and
the written sentences. The trial court orally pronounced sentences of 41.625 months in
prison, but the written sentences impose 41.65 months in prison. Because the oral
pronouncement controls, the written sentences are erroneous. See Williams v. State,
957 So. 2d 600, 603 (Fla. 2007). However, Lyons has not preserved this issue for
review by filing a motion to correct sentencing error. See Woodard v. State, 6 So. 3d
726, 727 (Fla. 2d DCA 2009). Accordingly, we affirm without prejudice to any right
Lyons may have to seek postconviction relief on this issue. See id.
Affirmed.
WALLACE and BLACK, JJ., Concur.
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