Terry P. Powell v. State , 223 So. 3d 412 ( 2017 )

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
TERRY PAUL POWELL,
Appellant,
v. Case No. 5D16-1810
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed July 7, 2017
Appeal from the Circuit Court
for Citrus County,
Victor J. Musleh, Senior
Judge.
James S. Purdy, Public Defender, and
Matthew Funderburk, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Terry Paul Powell appeals from a sentence imposed after he was convicted
following a jury trial of three offenses: assault (Count I), resisting an officer with violence
(Count II), and battery on a law enforcement officer (Count III). He raises two issues on
appeal: first, that the trial court improperly imposed drug offender probation on Count III,
as there was insufficient evidence that Powell qualified as a "chronic substance abuser"
under section 948.20, Florida Statutes (2015); and second, that his sentence on Count II
contains a scrivener's error. We affirm his judgment and sentence, write to explain our
reasoning, and remand for correction of the scrivener's error on Count II. 1 At the
sentencing hearing, the trial court sentenced Powell to five years' incarceration on Count
II as a prison releasee reoffender, and to three years' incarceration on Count III,
consecutive to the term of imprisonment imposed on Count II, to be followed by two years'
drug offender probation. In conflict with the oral pronouncement, the written sentence on
Count II reflects five years' imprisonment to be followed by two years of drug offender
probation.
This Court reviews the trial court’s order imposing drug offender probation for an
abuse of discretion. Sutton v. State, 128 So. 3d 957, 959 (Fla. 2d DCA 2013) ("[I]t was
within the trial judge's discretion to sentence Sutton to drug offender probation if it
appeared to the court that Sutton was a 'chronic substance abuser.'"). While this record
presents a close call, we conclude that the trial court's imposition of drug offender
probation as to Count III was supported by competent, substantial evidence in the record.
1 The State conceded error on the first issue, but for a different reason than argued
by Powell. "A confession of error, however, is not binding upon an appellate court, and it
is the practice of Florida appellate courts not to accept erroneous concessions by the
state." Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (citations omitted).
Specifically, the State conceded error because it believed that battery on a law
enforcement officer does not qualify for drug offender probation as it does not "fall under
the statutorily enumerated categories of offenses for which drug offender probation could
be imposed." We disagree. See State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007)
("[Battery on a law enforcement officer] is not a forcible felony under section 776.08."); §
948.20(1), Fla. Stat. (2015) ("[T]he term 'nonviolent felony' means a third degree felony
violation under chapter 810 or any other felony offense that is not a forcible felony as
defined in s. 776.08.").
2
The trial court had before it, among other evidence, the testimony of two law enforcement
officers establishing their familiarity with Powell due to numerous encounters with him
over several years. Although the officers' testimony included only a limited factual basis,
we cannot say that their testimony was not competent evidence. Further, the arrest
affidavit indicated that Powell was under the influence of a controlled substance on the
night of the incident. Given the substantial deference due the trial court here, we find no
reversible error on this point.
We agree that the written sentence contains a scrivener's error which should be
corrected upon remand as to Count II. "A written sentence that conflicts with the oral
pronouncement of sentence imposed in open court is an illegal sentence." Beard v. State,
27 So. 3d 186, 187 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So. 2d 600, 603
(Fla. 2007)). "When a discrepancy exists, the oral pronouncement controls over the
written." Id. In this case, the record reveals that the trial court imposed a sentence on
Count II of five years' incarceration, making no mention of drug offender probation on this
count. The written sentence should be corrected to conform to the oral pronouncement.
AFFIRMED; REMANDED for correction of scrivener's error.
COHEN, C.J., BERGER and EISNAUGLE, JJ., concur.
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