       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 13, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2374
                         Lower Tribunal No. 12-30062
                             ________________


                        Thaddeus Chaylon Martin,
                                    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, Victoria R. Brennan and Nushin Sayfie,
Judges.

      Gyden Law Group and Henry G. Gyden (Tampa), for appellant.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.


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

      EMAS, J.
      Thaddeus Chaylon Martin appeals four orders of the trial court: 1) an order

denying a motion to disqualify the original trial judge; 2) an order denying a

motion for reconsideration of a prior ruling of the original trial judge; 3) an order

denying a motion for postconviction relief under Florida Rule of Criminal

Procedure 3.850; and 4) an order denying a motion for rehearing of the order

denying the motion for postconviction relief.

      As to the order denying Martin’s motion to disqualify, we find no error.

Before Martin even filed his motion to disqualify, the original trial judge (who was

the subject of the motion to disqualify) was already reassigned to the juvenile

division, and therefore was no longer presiding over Martin’s case.       The newly-

assigned judge correctly denied Martin’s motion both on its merits and in light of

the reassignment of the original trial judge. See Neal v. State, 929 So. 2d 59 (Fla.

5th DCA 2006) (holding that motion to disqualify postconviction judge from

ruling on defendant’s motion for rehearing of his motion for postconviction relief

was rendered moot by that judge’s reassignment to another division).

      We also find no error in the order denying Martin’s motion for

reconsideration of the prior ruling of the original trial judge, given that the motion

to disqualify was denied on its merits.         See Fla. R. Jud. Admin. 2.330(h)

(providing that prior rulings “by a disqualified judge may be reconsidered by a




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successor judge upon a timely-filed motion for reconsideration”) (emphasis

added).1

      As to Martin’s final claims, we affirm the trial court’s order denying his

motion for postconviction relief (rendered by the original trial judge) and order

denying rehearing (rendered by a second trial judge), which motions were

premised on a claim of ineffective assistance of trial counsel. Martin claims that,

at his first probation violation hearing in 2013, his counsel provided ineffective

assistance by failing to advise Martin that he had not been lawfully placed on

probation on Count Two during his original plea and sentence in 2013. Martin

asserts that, had he been so advised, he would not have admitted to the subsequent

violation of probation in 2014, and instead would have insisted on proceeding to a

probation violation hearing, where it would have been established he was in fact

not on probation for Count Two (and therefore could not have “violated” his

probation).


1  Although not raised by Martin, we have considered the applicability of our
previous decision in Barber v. Mackenzie, 562 So. 2d 755 (Fla. 3d DCA 1990),
and find it distinguishable. In Barber, petitioner filed a motion to disqualify the
trial judge. After the motion was filed, the trial judge was transferred to another
division, and the successor judge denied the motion to disqualify. On a petition for
writ of prohibition, we held that the motion to disqualify was not rendered moot by
the reassignment of the trial judge because, had the motion been granted (and in
Barber we determined that it should have been granted), the successor judge could
have reconsidered the original judge’s previous orders pursuant to rule 2.330(h).
In the instant case, and upon our de novo review, we determine that the motion to
disqualify was properly denied.

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      This claim fails because its premise (i.e., that he was never placed on

probation on Count Two) is simply incorrect. The record—including the signed

written plea agreement, the probation order, and the oral pronouncement as set

forth in the transcript of the plea and sentencing hearing—establishes that Martin

pleaded guilty to a two-count information, pursuant to which he would be placed

on a concurrent, one-year term of probation as to each count of the information.2

To the extent that the judgment and sentence for Count Two omitted the one-year

probationary term, or otherwise conflicted with the oral pronouncement of the trial

court at the original sentencing, such an error is subject to correction by the trial

court, as the oral pronouncement controls. See Ashley v. State, 850 So. 2d 1265

(Fla. 2003) (oral pronouncement controls over written document). Where a conflict

2 The 2013 written plea agreement provided that, in exchange for Martin’s plea of
guilty to Count Two (charging aggravated battery with great bodily harm), the trial
court would adjudicate Martin guilty and that “the defendant shall be placed on
reporting probation, concurrent with Count 1, and have the following special
conditions. . . .” Martin expressly acknowledged in the written plea agreement that
he entered the plea freely and voluntarily, after having consulted with his attorney,
and that Martin understood that “failure to comply with any terms or conditions
within this agreement constitutes a violation of probation and subjects me to be
sentenced to the statutory maximum penalties provided by law for the crimes for
which I am now pleading guilty.”

Additionally, the trial court entered a probation order, also signed by Martin, which
reflected that a probationary sentence was imposed on both counts of the
information, and that order expressly incorporated the written plea agreement.
Finally, the transcript of the plea colloquy establishes that the trial court orally
pronounced that Martin was to be placed on probation for Counts One and Two for
a concurrent period of one year, and Martin acknowledged this under oath.


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exists between the written sentence and the oral pronouncement, the proper remedy

is for the trial court to clarify or correct the sentence, consistent with the oral

pronouncement. Chapman v. State, 14 So. 3d 273 (Fla. 5th DCA 2009). Such a

correction is cognizable as a motion to correct illegal sentence pursuant to Florida

Rule of Criminal Procedure 3.800(a)(1), which provides that “[a] court may at any

time correct an illegal sentence imposed by it . . . .”   See also Williams v. State,

957 So. 2d 600 (Fla. 2007).

      In the instant case, the trial court properly entered an order correcting the

2013 sentence to ensure that the written judgment and sentence conformed to the

oral pronouncement, which included a probationary term for Count Two. Martin’s

counsel “cannot be deemed ineffective for failing to raise a meritless claim.”

Peede v. State, 955 So. 2d 480, 502-03 (Fla. 2007). Had Martin’s counsel raised

this issue prior to or at the time of the probation violation hearing, the proper

remedy would have been for the trial court to enter a corrected judgment and

sentence nunc pro tunc, properly reflecting the agreed-upon and orally pronounced

sentence. Therefore, any inconsistency between the oral pronouncement and the

written judgment and sentence (or the trial court’s correction of same) could not

have affected the outcome of the proceeding because there is no reasonable

probability that, but for this error or omission, Martin would not have entered a

plea to the violation of probation and instead would have insisted on proceeding to



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a violation of probation hearing. See Grosvenor v. State, 874 So. 2d 1176, 1181

(Fla. 2004) (establishing two-pronged test for assessing claims of ineffective

assistance of counsel relating to guilty pleas: the first prong is identical to the

deficient performance prong in Strickland v. Washington, 466 U.S. 668 (1984); the

second prong requires that the defendant demonstrate “a reasonable probability

that, but for counsel’s errors, the defendant would not have pleaded guilty and

would have insisted on going to trial”).

      Affirmed.




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