Delvin 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
TYRONE M. DEVLIN, JR., )
)
Appellant, )
)
v. ) Case No. 2D16-2479
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 4, 2017.
Appeal from the Circuit Court for Pasco
County; Susan G. Barthle, Judge.
Howard L. Dimmig, II, Public Defender, and
Pamela H. Izakowitz, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, and
Kiersten E. Jensen, Assistant Attorney
General, Tampa, for Appellee.
LaROSE, Chief Judge.
Tyrone Devlin, Jr., appeals his judgment and sentences following the
jury's return of guilty verdicts for burglary (count 1) and petit theft (count 2). We have
jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm Mr. Devlin's judgment
and sentences but remand for correction of several scrivener's errors pertaining to
count 2.
Despite being found guilty on count 2 of the lesser included offense of
misdemeanor petit theft, the judgment incorrectly reflects that Mr. Devlin was convicted
in count 2 of the charged offense of grand theft, a third-degree felony. See Samudio v.
State, 460 So. 2d 418, 419 (Fla. 2d DCA 1984) ("[T]he court's judgment must conform
to the jury's verdict." (citing Hicks v. State, 411 So. 2d 1025 (Fla. 2d DCA 1982))).
Further, although the sentencing transcript reflects that the trial court imposed a time-
served disposition on count 2, the written sentence indicates that he received a ten-year
prison term. See §§ 775.082(4)(a) (authorizing a term of imprisonment not exceeding
one year for a first-degree misdemeanor); 812.014(2)(e), Fla. Stat. (2015).
Consequently, remand is required to ensure that the written sentence comports with the
trial court's oral pronouncement. See Rivera v. State, 117 So. 3d 449, 449 (Fla. 2d
DCA 2013) ("Because the written sentences do not comport with the trial court's oral
pronouncement, we must remand for correction of the written sentences to reflect the
oral pronouncement.").
Because correction of these scrivener's errors is a ministerial act, Mr.
Devlin's presence is not required. See Wolcoff v. State, 197 So. 3d 111, 112 (Fla. 1st
DCA 2016).
Affirmed; remanded to correct scrivener's errors.
NORTHCUTT and KELLY, JJ., Concur.
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