Gonzalez v. State

       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 31, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1037
                        Lower Tribunal No. 02-12181B
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                               Mike Gonzalez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Dennis J. Murphy, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.


      ROTHENBERG, C.J.
      Mike Gonzalez (“the defendant”) appeals the trial court’s denial of his

postconviction motion to correct an illegal sentence pursuant to Florida Rule of

Criminal Procedure 3.800(a).      In his postconviction motion, the defendant

contested his sentence on two grounds: (1) his convictions for attempted home

invasion robbery and burglary of a dwelling with a battery constituted double

jeopardy; and (2) the 90-month sentence reflected on the judgment for trespass, a

second degree misdemeanor, and carrying a concealed weapon, a first degree

misdemeanor, did not conform to the trial court’s oral pronouncement and was in

excess of the statutory maximums. However, the only argument raised on appeal

is the trial court’s failure to correct the sentence as to the second ground raised

below. Because the claim on appeal is well-taken, we reverse the trial court’s

order denying relief and remand for correction of the judgment and sentences to

reflect the trial court’s oral pronouncement—that the defendant was sentenced to

“credit for time-served” for trespass and carrying a concealed weapon—and to

reflect a sentence no greater than what the law provides for these two misdemeanor

offenses. Thus, the judgment and sentences shall be corrected on remand to read

that the defendant was sentenced to: (1) sixty days, with credit for the sixty days

the defendant served as to Count IV, trespass to a structure or conveyance; and (2)

364 days, with credit for the 364 days the defendant served as to Count VI,

carrying a concealed weapon.



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Reversed and remanded for correction of the judgment and sentence.




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