PLANCARTE v. STATE (2012)

Mario Plancarte's motion for rehearing is granted. The prior opinion dated April 11, 2012, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

Mario Plancarte appeals the trial court's order denying his motion to correct an illegal sentence that was filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We address only one ground of his motion and affirm the order.

Mr. Plancarte was convicted of aggravated battery with a firearm because he concluded a disagreement with another man in 2004 by shooting the man. He was orally sentenced to twenty-five years' imprisonment with a twenty-five-year minimum mandatory term pursuant to the 10/20/Life statute. § 775.087(2)(a)(3), Fla. Stat. (2003). We affirmed his direct appeal in 2005. Plancarte v. State, 918 So.2d 302 (Fla. 2d DCA 2005) (table decision).¹

Mr. Plancarte claims his sentence is illegal because the trial court initially entered a written sentence on September 21, 2004, that failed to include the minimum mandatory term. He filed his appeal on October 8, 2004. On October 15, 2004, the trial court entered an amended written sentence, nunc pro tunc, correcting the scrivener's error.² It appears that this alteration was simply attached to the existing sentencing documents without being separately file stamped. On direct appeal, the correction appeared to have been entered prior to the filing of the notice of appeal.

Mr. Plancarte focuses on case law that stands for the proposition that a trial court loses jurisdiction to amend a sentence once a notice of appeal is filed and throughout the remainder of the appeal. See Linnon v. State, 988 So.2d 70, 72–73 (Fla. 2d DCA 2008). He claims that the corrected sentence is void and has no effect. Although we agree with Mr. Plancarte that the procedure used in this case was unusual and not in accordance with the foregoing case law, the resulting sentence correctly reflects the trial court's oral pronouncement. If the sentence on direct appeal had been the written sentence in its original form without this attachment, it would have been an erroneous sentence. We simply conclude that Mr. Plancarte's written sentence, as amended nunc pro tunc on October 15, 2004, accurately states the sentence orally announced on September 21, 2004, and it is not an illegal sentence subject to any correction at this time under rule 3.800(a).

Affirmed.

BY ORDER OF THE COURT.

CASANUEVA and VILLANTI, JJ., Concur.