JASON LAMAR GILBERT v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JASON LAMAR GILBERT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-223
[August 23, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Suskauer, Judge; L.T. Case No. 50-2020-CF-
001538A.
Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Jason Lamar Gilbert appeals his judgment and sentence following the
jury’s return of a guilty verdict for first degree murder. We affirm the
judgment and sentence without comment on the issues raised, but
remand solely to correct an error in the judgment.
Appellant argues that the final judgment contains a scrivener’s error
requiring reversal, and the State properly concedes error. This court has
previously remanded final judgments in other criminal cases for correction
where the judgment did not accurately reflect the offenses for which the
defendant was convicted. See Ali v. State, 215 So. 3d 1250, 1251 (Fla. 4th
DCA 2017); Widel v. State, 120 So. 3d 68, 69 (Fla. 4th DCA 2013). The
purpose of correcting a scrivener’s error in a criminal judgment is to
ensure the judgment conforms with the jury’s verdict. 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.”).
Here, the final judgment reflects that appellant was convicted of felony
murder under section 782.04(1)(a)2., Florida Statutes (2020), despite the
State not pursuing the felony murder charge at trial. Although the trial
court entered an order granting appellant’s motion to correct the error,
that order was ineffective because it was filed more than sixty days after
appellant’s motion was filed. See Fla. R. Crim. P. 3.800(b)(2)(B) (“[I]f the
trial court does not file an order ruling on the motion within 60 days, the
motion shall be deemed denied.”).
This scrivener’s error can be corrected through a ministerial act by the
trial court rather than reversing the judgment, and without the need for a
resentencing hearing. See Prentice v. State, 319 So. 3d 57, 62 (Fla. 4th
DCA 2021) (“Since correction of the written judgment in this case is a
ministerial act, neither resentencing nor Appellant’s presence is required
for this purpose.”). Therefore, appellant’s presence in court is not required
for the trial court to make this correction. See id.; Wolcoff v. State, 197
So. 3d 111, 112 (Fla. 1st DCA 2016) (noting a defendant is not required to
be present for the correction of a scrivener’s error on remand).
Affirmed; remanded to correct scrivener’s error.
KLINGENSMITH, C.J., CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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