Gillen v. State

PER CURIAM. Defendant argues that the written sentence is not correct in that it does not reflect the amount of jail credit orally pronounced at the sentencing hearing. He argues that the trial judge orally announced that he would give defendant the same credit as was given by the court in Brevard County. A certified copy of the sentence from Brevard County does in fact show that the court there gave him credit for 233 days. Additionally, the trial judge also announced credit of 17 days for the time spent here awaiting sentence. The written sentence shows only the 17 days but lacks the 233 days. Where the written sentence does not conform to the court’s oral pronouncement of judgment and sentence, the latter prevails. Kelly v. State, 414 So.2d 1117 (Fla. [953] 4th DCA 1982); Howard v. State, 591 So.2d 1067 (Fla. 4th DCA 1991). The record in this case shows without contradiction that, in accepting the plea for an upward departure sentence, the trial court specifically intended to award the defendant the same amount of jail credit that he had previously received in a separate case in Brevard County. In addition, the record demonstrates that the trial court also intended to award 17 days jail credit for the time incarcerated before the imposition of this sentence. Under these circumstances, remand for correction of the written sentence is necessary because the written sentence does not reflect the intent of the orally pronounced sentence. See Martindale v. State, 678 So.2d 883 (Fla. 4th DCA 1996) (remand for correction of written sentence is required where intent of oral pronouncement is not reflected in the written sentence); Davis v. State, 677 So.2d 1366 (Fla. 4th DCA 1996) (written sentence must conform to trial court’s oral pronouncement of sentence); see also Benson v. State, 613 So.2d 555 (Fla. 4th DCA 1993) (defendant who entered into plea agreement that sentence was to run concurrent with his sentence in another county held entitled to jail credit for time served in the other county). REVERSED AND REMANDED TO CORRECT SENTENCE TO REFLECT PROPER CREDIT. GUNTHER, POLEN and FARMER, JJ., concur.