Justin Matthew Ducker v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JUSTIN MATTHEW DUCKER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4539
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 2, 2016.
An appeal from the Circuit Court for Washington County.
Christopher N. Patterson, Judge.
Nancy A. Daniels, Public Defender, and Mark Graham Hanson, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
This appeal was filed pursuant to Anders v. California, 386 U.S. 738 (1967).
Having reviewed the record, we affirm Appellant’s convictions and sentences, but
we remand with directions to correct two apparent scrivener’s errors in the
judgment.
First, at trial, the court granted Appellant’s motion for judgment of acquittal
to the extent it reduced the offense of criminal mischief (count 4) from a first
degree misdemeanor to a second degree misdemeanor. The jury also specifically
found Appellant guilty of criminal mischief less than $200, which is a second
degree misdemeanor. However, the written judgment reflects a conviction for
count 4 as originally charged: a first degree misdemeanor. Accordingly, on
remand, the trial court shall correct the judgment to reflect that count 4 is a second
degree misdemeanor. See Clark v. State, 85 So. 3d 1190 (Fla. 1st DCA 2012)
(affirming Anders appeal but remanding with directions to correct conviction in
judgment); see also Bryant v. State, 124 So. 3d 256 (Fla. 1st DCA 2013) (affirming
Anders appeal but remanding for correction of scrivener’s error in sentence).
Second, at the sentencing hearing, the trial court orally designated Appellant
as a habitual felony offender and prison releasee reoffender. However, the written
judgment in the record on appeal does not reflect these designations. Accordingly,
on remand, the trial court shall correct the judgment to conform to the oral
pronouncement. See Bryant, 124 So. 3d at 257 (remanding for written judgment to
conform to oral pronouncement); see also Marshall v. State, 78 So. 3d 72 (Fla 4th
2
DCA 2012) (stating that if there is no ambiguity in oral pronouncement, sentencing
order must be corrected to reflect oral pronouncement).
Appellant need not be present for these ministerial corrections to the
judgment. See Walton v. State, 106 So. 3d 522, 529 (Fla. 1st DCA 2013) (“[A]
defendant need not be present at resentencing if the error to be corrected is ‘purely
ministerial’ or clerical, and involves no exercise of the court’s discretion.”).
AFFIRMED; REMANDED with instructions.
WETHERELL, RAY, and BILBREY, JJ., CONCUR.
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