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. 5D16-758

STATE OF FLORIDA,

Appellee.

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Opinion 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 sentence imposed by the trial court following a jury 

trial at which he was convicted of 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 Criminal Procedure 3.800(b)(2) motion to correct sentencing error alleging 
2

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 reflects that the trial court sentenced 

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

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

documents provided, however, that Santiago’s sentence would 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 over the written sentence. 

Following a hearing, the trial court denied Santiago’s motion, finding that the transcript 

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 open 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 parties 

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

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 pronouncement 

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

 

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

749 So. 2d 550, 551 (Fla. 2d DCA 2000) (citing Tory v. State, 686 So. 2d 689 (Fla. 4th 

DCA 1996)); accord Manual v. State, 547 So. 2d 726 (Fla. 2d DCA 1989) (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 discrepancy before it. In this 

case, the court reporter 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 proceedings was incorrect, 

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

Accordingly, we affirm Santiago’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 appellate record with the disc of the actual audio recording of the 

trial court’s oral pronouncement 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 consecutively to 

any other active sentence. We appreciate counsel’s candor.