JAIMES LUVIANO v. STATE (2023)

The defendant primarily appeals from his conviction for trafficking in methamphetamines – 200 grams or more. We affirm that conviction on all arguments raised without further discussion. However, we remand for the circuit court to correct its written sentencing order on the defendant's misdemeanor convictions for driving without a valid driver's license, leaving the scene of an accident with property damage, and resisting arrest without violence.

After the circuit court adjudicated the defendant guilty on those three misdemeanor charges, the circuit court orally sentenced the defendant “to time served on each and every one of those charges.” However, the circuit court later entered a written sentencing order which, contrary to the oral pronouncement, imposed a 591-day prison term on those charges.

The defendant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging the 591-day prison sentence as “greater than the maximum allowable sentences for those three crimes.” Because the circuit court did not rule on the motion within sixty days, the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).

The defendant argues, and the state concedes, the circuit court must ministerially correct its written sentencing order to conform to its orally pronounced sentence of “time served.” Driving without a valid driver's license and leaving the scene of an accident with property damage are second degree misdemeanors for which a person may be sentenced “by a definite term of imprisonment not exceeding 60 days.” §§ 316.061(1), 322.39, 775.082(4)(b), Fla. Stat. (2020). Resisting arrest without violence is a first degree misdemeanor for which a person may be sentenced “by a definite term of imprisonment not exceeding 1 year.” §§ 775.082(4)(a), 843.02, Fla. Stat. (2020). Thus, the written sentencing order's 591-day prison term, whether viewed cumulatively or individually for each of those charges, exceeded the respective statutory maximums.

Based on the foregoing, we remand for the circuit court to ministerially correct its written sentencing order on the three misdemeanor charges to either conform to its orally pronounced sentence of “time served” or set forth the statutory maximum of days for each of those charges. See Raines v. State, 317 So. 3d 1162, 1162 (Fla. 4th DCA 2021) (“Where a trial court's written sentencing order conflicts with the oral pronouncement, the oral pronouncement controls. On remand, the trial court shall correct the written sentencing order.”) (internal citations and quotation marks omitted). The defendant need not be present for this ministerial task. Id.

Lastly, we conclude the defendant's argument that the circuit court erred in imposing costs which were not mandatory or orally pronounced lacks merit, with no further discussion required. We also conclude the defendant's argument that he was entitled to a twelve-person jury under the Sixth and Fourteenth Amendments to the United States Constitution has been rejected in Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022), review denied, No. SC22-1597, 2023 WL 3830251 (Fla. June 6, 2023).

Affirmed; remanded for correction of written sentencing order.

Gerber, J.

Levine and Conner, JJ., concur.