IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED ANGEL LUIS SANTIAGO, JR.

,

Appellant

,

v. Case No. 5D 16

- 758

STATE OF FLORIDA

,

Appellee

. ________________________________/

Opin ion filed September 1, 2017

Appeal from the Circuit Court for Osceola County

, Jon B. Morgan , Judge.

James S. Purdy, Public Defender, and Glendon G. Gordon, Jr, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

Angel Santiago challenges his sen tence imposed by t he trial court following a jury

trial at which he was convicted o f burglary of a dwelling with an assault or battery. The

sole issue raised in this direct appeal is whether the trial court erred in denying Santiago’s

Florida Rule of Crim inal Procedure 3.800(b)(2) motion to correct sentencing error alleging2

that the written judgment and sentence conflicted with the court’s oral pronouncement of

sentence. For the following reasons, we affirm.

The transcript of the sentencing hearing reflec ts that the trial court sentenced

Santiago t o serve 48.075 months in prison , specifically stating that it would be

“ nonconsecutive to any other sentences you may be serving.” The written sentencing

documen ts provided, however, that Santi ago’s sentence wou ld run consecutively to any

other sentence being served. Santiago thereafter filed his rule 3.800(b)(2) motion,

arguing that the written sentence is erroneous and illegal because the court’s oral

pronouncement of the “nonconsecutive” sentence controls ove r the written sentence.

Following a hearing, the trial court denied Santiago’s motion, finding that the t ranscript

was in error and that the written judgment and sentence is correct and complies with the

court’s oral pronouncement. 1

“Generally, courts have held that a written order must conform to the oral

pronouncement . . . because the written sentence is usually just a record of the actual

sentence required to be pronounced in o pen court.” State v. Akins , 69 So. 3d 261, 269

(Fla. 2011) (quoting Justice v. State , 674 So. 2d 123, 125 (Fla. 1996)). Thus, “when there

is a discrepancy between the written sentence and ‘the oral pronouncement, the oral

pronouncement prevails.’” Id

. (quoting Justice , 674 So. 2d at 125 ) . Typically, the p arties

will agree that where a discrepancy exists between the oral pronouncement and th e

written sentence, the written judgment and sentence must be corrected. However, where,

as here, the State does not concede error, the “ conflict between the oral prono uncement

and the written order requires a factual resolution by the trial court. ” Enchautegui v. State

,

1 A trans cript of this hearing is not contained in our record.3

749 So. 2d 550, 551 (Fla. 2d DCA 2000) (citing Tory v. State , 6 8 6 So. 2d 689 (Fla. 4th

DCA 1 996)) ; accord Manual v. State , 547 So. 2d 726 (Fla. 2d DCA 19 89) (holding that

where the written judgment and sentence do not conform to the oral pronouncement, on

remand, the State may attempt to establish that the error was caused by the court

reporter).

We find that the trial court properly addressed the discre pancy before it. In this

case, the court reporte r filed an affidavit subsequent to the hearing

, correcting the

transcript to read that the trial court did orally pronounce that Santiago’s sentence would

run consecutively to any other active sentence. See Duncan v. State , 59 So. 3d 1197,

1199 (Fla. 5th DCA 2011) (holding that “ [ i ] f the trial court finds after appropriate

investigation that the transcript of the digital recording of the proceeding s was incorrect,

then a correction to the transcript should be created”). 2

Accordingly, we affirm Sa ntiago’s conviction and sentence

.

AFFIRMED.

COHEN, C.J.

, and ORFINGER , J., concur.

2 Prior to the filing of the reply brief, we granted Santiago’s counsel ’s motion to further supplement the appellat e record with the disc of the actual audio recording of the trial court’s oral pronounc ement of sentence. In his reply brief, counsel represented that he reviewed the audio recording of the pronouncement of sentence and conceded that the trial court pronounced that Santiago’s sentence would, in fact, run consecutive ly to any other active sentence. We appreciate counsel’s candor.