Lester v. StateLester v. State
Lester entered a guilty plea to the charge of carrying a concealed firearm. At sentencing, the court orally classified Lester as a youthful offender, withheld adjudication, placed him on probation for three years, and imposed a special condition that he serve six months in a juvеnile facility, Britt Halfway House. An inconsistent written order followed which adjudicated Lester guilty of committing a delinquent act, committed him to the Department of Health and Rehabilitative Services (H.R.S.) for placement in an appropriate program, recommended plаcement in Britt Halfway House, and assessed costs of $232.50.
Lеster argues that the inconsistent written sentence must cоnform to the oral pronouncements. Generally, an oral sentencing pronouncement prevails оver a subsequent written sentence where the state сoncedes that the latter was in error. Harden v. State, 557 So.2d 926 (Fla. 5th DCA 1990); Marchand v. State, 546 So.2d 1184 (Fla. 5th DCA 1989); Wilkins v. State, 543 So.2d 800 (Fla. 5th DCA), review denied, 554 So.2d 1170 (Fla. 1989); Mott v. State, 489 So.2d 854 (Fla. 5th DCA 1986); Venuti v. State, 437 So.2d 238 (Fla. 5th DCA 1983). In the instant cаse, the state has not conceded that all provisions of the written sentence were in error, and, therefore, the orally pronounced sentence сannot be substituted for the written order. Absent concession by the state, a conflict between the written order аnd the oral pronouncement requires a factuаl resolution by the trial court. Wilkins, supra.
Furthermore, the oral sentence was defective in that, while the court attemрted to classify Lester as a youthful offender, it failed to make a written finding, pursuant to
Lester also argues that the assessment of costs must be stricken sinсe the court awarded costs without providing him with adequate notice and affording him an opportunity to be hеard. We agree that the assessment of costs in the written order was erroneous. Bull v. State, 548 So.2d 1103 (Fla. 1989); Jenkins v. State, 444 So.2d 947 (Fla. 1984). Lester had neither noticе nor opportunity to object since the assessment of costs first appeared in the written order.
On remand, the trial court shall choose between committing Lеster to H.R.S. for an indeterminate period of time pursuant to
Sentence VACATED; cost judgment STRICKEN; and REMANDED.
COBB and COWART, JJ., concur.