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20 Sep 2012

Post Conviction Relief/Correction of Clerical Errors/VOPs Averted

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J.D. contacted Jeffrey H. Garland about sentencing problems arising from his felony cases in Indian River County, Florida. J.D. complained that the financial assessments and community service were way too much, but could not explain why. He needed help.

Attorney Garland obtained the recording of the sentencing proceeding which took place on October 20, 2009. At that time, J.D. was sentenced on three counts of felony worthless check, which were filed under three separate case numbers.

At sentencing, Vero Beach Circuit Judge Robert Pegg announced a $500.00 public defender fee, $50.00 public defender application fee, $100.00 cost of prosecution and 100 hours of community service. These numbers were incorporated into three separate community control/probation orders.

When J.D. began serving his community control/probation, his probation officer demanded payment of these financials and performance of the community control in each separate case. The probation officers interpretation tripled these financial payments and tripled the amount of community service. Attorney Garland promptly filed a motion to clarify terms of community control/probation. The simple claim was that the paperwork erroneously tripled these assessments. At a November 5, 2010 hearing on this motion, Judge Pegg immediately recalled the sentencing, and agreed that his intent was to impose the financials and community service a single time for all three cases. J.D. saved $1,300.00 and, more importantly, the time and effort to perform 200 hours of community service. The correction of these clerical errors averted a probation violation which the probation officer had threatened to seek.

COMMENT: The probation officers interpretation of sentencing documents is not the final word. The sentence orally imposed by the court at the time of sentencing is the sentence which controls. Quite often, there is a discrepancy between the sentence orally announced and the written documents. In such situations, the person should seek professional advise whether there are grounds for relief. In J.D.s case, it was far more efficient to correct clerical errors while he remained free, than to defend a violation of probation while languishing in jail without bond. A motion seeking to correct a clerical error usually proceeds in an expedited fashion. It is not filed under Rule 3.850, and does not preclude a later 3.850 motion.

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