final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 12-30062, Victoria R. Brennan and Nushin Sayfie, Judges.
Law Group and Henry G. Gyden (Tampa), for appellant.
Jo Bondi, Attorney General, and Douglas J. Glaid, Senior
Assistant Attorney General, for appellee.
ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
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
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).
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 successor judge upon a timely-filed
motion for reconsideration") (emphasis
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).
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.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 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.
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 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").