IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

LEROY SPATCHER,                         NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D16-5656

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 6, 2017.

An appeal from the Circuit Court for Baker County.
James M. Colaw, Judge.

Andy Thomas, Public Defender, and Brenda L. Roman, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney
General, for Appellee.



WINSOR, J.

      The trial court revoked Leroy Spatcher’s probation and sentenced him to

prison. The issue on appeal is whether the trial court had jurisdiction to do that. That

issue turns on when Spatcher’s probation ended, which turns on what actually

happened six years ago in Spatcher’s original, convoluted sentencing proceeding.
Although Spatcher offers a colorable interpretation of that proceeding, we disagree

with his ultimate conclusion. Spatcher was still on probation when he violated, so

the trial court had jurisdiction to revoke. We affirm.

                                          I.

      In 2011, Spatcher faced charges in two separate criminal cases. In the first

case (Case No. 02-2010-CF-256A, or the “drug case”), the State charged Spatcher

with the sale of a counterfeit controlled substance. In the other case (Case No. 02-

2010-CF-146A, or the “driving case”), the State charged felony driving with a

revoked license, along with six related misdemeanors. Spatcher and the State entered

a plea agreement to resolve all charges in both cases. According to the agreement,

Spatcher would receive one year of community control for the drug charge, followed

by five years of probation for the felony driving charge. The agreement also provided

“credit for time served of 301 days.”

      The trial court then imposed sentence, the precise details of which the parties

dispute. The five years’ probation was consecutive to the one-year community

control—Spatcher and the State agree on that part. They also agree that Spatcher’s

various jail sentences (up to 301 days) for the misdemeanors were for time served.

Also undisputed is the fact that the violation-of-probation affidavit was filed within

five years of the end of Spatcher’s community control (in other words, within six

years of sentencing). The rub is that the affidavit came less than 301 days before the

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end of the five years, meaning that if Spatcher’s 301 days’ jail credit operated to

shorten his probation, his probation ended before the affidavit. If that were the case,

the trial court would have lacked jurisdiction to revoke Spatcher’s probation and

sentence him to prison. See Aponte v. State, 

, 838 (Fla 1st DCA 2005);

Mundorff v. State, 

, 1236 (Fla. 1st DCA 2005). We review the issue

of a trial court’s jurisdiction de novo. Baldwin v. State, 

, 992 (Fla. 1st

DCA 2009).

                                          II.

      The oral pronouncement at the 2011 sentencing was not entirely clear, and it

conflicted with the written sentences in both cases, which themselves conflicted with

one another. Had the trial court in 2011 operated with greater care and precision, we

likely would have never had this appeal. But having waded through the unnecessary

complications, we conclude that the 2011 sentence was lawful and included a full

five years of probation. Therefore, the trial court had jurisdiction to enter the order

on appeal.

      The sentencing document for Spatcher’s driving case shows a sentence of 301

days in jail with 301 days’ credit plus five years of probation. As Spatcher notes,

this total sentence would exceed the five-year maximum allowed for his third-degree

felony conviction. See §§ 322.34(5), 775.082(3)(d), Fla. Stat. (2009). He therefore

argues that his lawful probation ended four years and sixty-four days after the end

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of his community control, the four years and sixty-four days equaling the five-year

statutory maximum minus the 301 days he says he was sentenced to jail. See Tate v.

State, 

, 537 (Fla. 1st DCA 2016); 

.

         The State concedes that if the sentencing document reflected the actual

sentence, we would have to reverse. But as the State argues, the oral

pronouncement—not the sentencing document—controls. See Thomas v. State, 

, 550 n.1 (Fla. 1st DCA 2016); Busbee v. State, 

, 1269

(Fla. 1st DCA 2016). At sentencing, the court said little about the driving case, but

it clearly said the five years of probation was “to follow” the one year of community

control. It made no mention of jail or jail credit for the driving case. Accordingly,

Spatcher’s sentence was consecutive to the community control and for a full five

years.

         We reject Spatcher’s suggestion that the oral-pronouncement-controls rule

applies only when it benefits the defendant. That is tantamount to arguing that the

lesser punishment always controls, a rule we have never recognized. The rule that

oral pronouncements control operates whether it helps or hurts a defendant. See, e.g.,

Rodriguez v. State, 

, 1054 (Fla. 2d DCA 2017) (remanding for trial

court to strike youthful offender sentence in written judgment because court orally

denied defendant’s request for a youthful offender sentence and instead imposed

twenty years’ imprisonment); Drumwright v. State, 

, 1030-31 (Fla.

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5th DCA 1991) (holding trial court’s oral pronouncement of thirty years controlled

over written sentence of thirty months).

      We also reject Spatcher’s suggestion that the court’s failure to give jail (or jail

credit) for the driving charge was an apparent oversight—that considering the plea

agreement and counsel’s argument at sentencing, we should find the court’s intent

was to give credit on all charges. But even if we were to look behind the oral

pronouncement to find the court’s true intent, cf. Gillen v. State, 

, 953

(Fla. 4th DCA 1997) (examining trial court’s intent to determine if there was a

discrepancy between the oral and written sentences), we would affirm. The

handwritten plea agreement said “one year community control (DO) followed by 5

years drug offender probation.” And at the sentencing, Spatcher’s public defender

asked the court to impose one year of community control followed by five years of

probation “so that the State could get the full six years it was asking for.” In

addressing Spatcher, the court noted its “intent that you be under supervision for a

period of six years.” We conclude that the sentence of five years’ probation on the

driving charge (with no jail or jail credit on that charge) was consistent with the

court’s and the parties’ intent.

      Finally, we reject Spatcher’s argument that the State failed to preserve the

sentencing issue. Spatcher cites Latson v. State, 

, 1071 (Fla. 1st DCA

2016), to argue we cannot correct a scrivener’s error without a 3.800 motion. Even

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assuming the State could not seek an order remanding for correction of a scrivener’s

error, that is not what the State seeks. The State is not asking this court (or the trial

court) to “correct” the written sentence; the State is asking us to recognize what the

sentence was, to recognize that the oral pronouncement controls, and to recognize

that because of the original sentence, the trial court had jurisdiction to revoke

Spatcher’s probation.

      AFFIRMED.

LEWIS and WETHERELL, JJ., CONCUR.




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