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

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

v.                                    CASE NO. 1D16-0742

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 18, 2016.

An appeal from an order of the Circuit Court for Duval County.
Jack M. Schemer, Judge.

Michael Wolcoff, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant appeals the denial of a motion to correct illegal sentence filed

pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of
the appellant’s request for prison credit without further discussion. However, we

reverse and remand for the trial court to correct the written sentence.

      The appellant notes that his plea, and the oral pronouncement of sentence,

called for the sentence in this case to be imposed concurrently to those imposed in

Putnam County case 2011CF1320 and Clay County case 2012CF637. However,

the written judgment and sentence does not indicate whether the sentence is to run

concurrently or consecutively to any other sentences. Thus, the appellant alleges

that the Department of Corrections is interpreting his sentence in this case as

running consecutively to those imposed in cases 2011CF1320 and 2012CF637.

The Department’s interpretation of the sentencing documents appears to be correct,

because when the written judgment and sentence is silent on the matter, and the

sentences were imposed for crimes “charged in separate informations,” the

presumption is that the sentences are consecutive.        See § 921.16(1), Florida

Statutes (2001) (“Sentences of imprisonment for offenses not charged in the same

indictment, information, or affidavit shall be served consecutively unless the court

directs that two or more of the sentences be served concurrently.”) (emphasis

added); Bruce v. State, 679 So.2d 45, 46-47 (Fla. 3d DCA 1996) (“Where the trial

judge fails to specify whether sentences imposed for offenses not charged in the

same information or indictment be served concurrently, section 921.16(1) dictates

that such sentences be served consecutively.”). It is clear from the written plea

                                          2
agreement and the oral pronouncement of sentence that the sentence in this case

was meant to be imposed concurrently with any sentences imposed in case

2011CF1320 and case 2012CF637. Thus, we reverse and remand, in part, for the

trial court to amend the sentencing documents to reflect that the sentence imposed

in this case is to run concurrently with any sentences imposed in cases

2011CF1320 and 2012CF637. See Ashley v. State, 850 So. 2d 1265 (Fla. 2003)

(holding that oral pronouncement of sentence controls over written documents).

As this involves the correction of a scrivener’s error, the appellant need not be

present. See Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013) (holding that a

defendant need not be present at resentencing if the error to be corrected is purely

ministerial or clerical, and involves no exercise of the court's discretion; ministerial

or clerical corrections include changing the written sentence to conform to the oral

pronouncement).

      AFFIRMED in part, REVERSED AND REMANDED in part with

directions.

BILBREY, KELSEY, and M.K. THOMAS, JJ., CONCUR.




                                           3
