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

JUAN INES BARRIERA ,

Appellant ,

v. Case No. 5D 16

- 630 STATE OF FLORIDA ,

Appellee

. ________________________________/ Opinion filed July 29, 2016 3.800 Appeal from the Circuit Court for Orange County , Keith A. Carsten , Judge. Juan I. Barriera, Madison, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM. Juan Barriera appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Barriera candidly acknowledges that his sentence "is not technically illegal." Nevertheless, he argues that the postconviction court erred by not gr anting him habeas corpus relief to re c t ify a "manife st injustice." We write to explain why Barriera is not entitled to relief.2

In 1994, f ollowing a jury trial, Barriera was convic ted of armed burglary of a dwelling, a first

- degree felony punishable by up to life in prison. § 810.02(2)(b), Fla. Stat. (1994). 1 He was sentenced as a habitual violent felony offender ("HVFO") to serve life in prison, with the trial court also orally pronouncing that Barriera "would not be eligible for parole for at least fif teen years." 2 This court affirmed Barriera's judgment and sentence

without opinion. Barriera v. State , 661 So. 2d 16 (Fla. 5th DCA 1995). Over the ensuing years, Barriera filed several motions seeking postconviction relief, which were all de nied by the lower court. His appeal s of the denial orders were also unsuccessful. In 2015, Barriera, through counsel, wrote a letter to the Florida Commission on Offender Review, inquiring as to his parole eligibility f or the armed burglary conviction . T he commis sion responded that, due to the nature and the timing of his offense, Barriera would essentially never be eligible for parole. Barriera , thereafter, filed his present motion, arguing that his sentence is illegal and, more particularly, that a manifest injus tice has occurred because the trial court intended that he be eligible for parole , y et the Commission on Offender Review determined otherwise. In the order on appeal, the postconviction court held that Barriera's sentence was not illegal and the transcript from the sentencing hearing did not demo nstrate that the sentencing cour t intended for Barriera to receive parole. Citing to Johnson v. State , 9 So. 3d 640 (Fla. 4th DCA 2009) , and Stephens v.

State , 974 So. 2d 455 (Fla. 2d DCA 2008), Barriera essentially asks that we treat his

1 Barriera was also convicted of two other felonies which are not pertinent to this appeal.

2 The written judgment and sentence also reads that Barriera would have "no parole for 15 years."3

appeal as a petition for a writ of habeas corpus and, much like our sister courts in those two cases, grant relief , direct ing the trial court to hold a new sentencing hearing and to

reconsider his sentence to avoid a mani fest injustice. B ecause we perceive significant differences between Barriera's sentencing and t hose in Stephens and Johnson , we decline the invitation.

In B urdick v. State , 594 So. 2d 267 (Fla. 1992), the Florida Supreme Court held

that first

- de gree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement sentencing under the habitual felony offender statute

. 594 So. 2d at 267

– 68. The court also held that sentencing under the HFO and H V F O statutes

i s permi ssive, not mandatory. Id

. Nevertheless , the trial judges in Stephens and Johnson

were both under the impression that they were required to impose a life sentence on a

defendant convicted of a first

- degree felony punish able by up to life and who qualified for sentencing as a habitual felony offender. See Johnson , 9 So. 3d at 641; Stephens , 974 So. 2d at 456. In the present ca se, unlike in Johnson and Stephens , the trial court was not under the misapprehension that, because Bar riera qualified fo r HVFO sentencing , the imposition of the life sentence w as mandatory. Furthermore, it is evident from the trial

court's comments at sentencing that the court believed the life sentence was entirely justified and only mentioned parole because it thought it was required to do so. Thus, although the court faile d to perceive that by imposing an HVFO life sentence, Barriera would not be eligible for parole, see Johnson , 9 So. 3d at 641 (citations omitted), we

conclude that no manifest i njustice exists t o justi fy resentencing. Cf . Lewis v. State , 625 So. 2d 102, 103 (Fla. 1st DCA 1993) ( affirming life sentence for HFO defendant despite4

trial court's inac c urate statement during sentencing concerning possibility of early release from prison because the trial cour t's intent to impose a life sentence wa s unambiguous).

Accordi ngly, we affirm the postconvict ion court's denial of Barrier a 's motion to correct illegal sentence and deny his request for habeas corpus relief. 3

AFFIRMED. PALMER, EVANDER and LAMBERT, JJ., concur.

3 We note that a scrivener's error exists in the judgment and sentence. Although the trial court orally pronounced that it was sentencing Barr iera as a habi tu al violent felony offender, t he box for the HVFO sentencing on the armed burglary of a dwelling conviction was not checked. As we have previously held, the "oral pronouncement of sentence controls over the written document." Gray v. State , 915 So. 2d 254, 256 (Fla. 5th DCA 2005) (citing Ashley v. State , 850 So. 2d 1265, 1268 (Fla. 2003)). However, this issue has not been preserved. See Johnson v. State , 954 So. 2d 702, 702

- 03 (Fla. 1st DCA 2007) (refusing to correct fai lure to check "con current " on written sentence, a scrive ner's error, "because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) (citing Proctor v. State , 901 So. 2d 99 4, 995 (Fla. 1st DCA 2005); Aument v. State , 868 So. 2d 682 (Fla. 5th DCA 2004)) )

.