Johnston v. State

684 So. 2d 262, 1996 Fla. App. LEXIS 12749, 1996 WL 692152

Opinion

PER CURIAM.

Appellant, Rodney Johnston, appeals from written orders revoking community control and probation, and from a seven-year prison term. We affirm in part and reverse in part.

Appellant correctly argues that the order revoking probation should be vacated because no formal charge of violation of probation had been filed. This issue may be raised for the first time on appeal because it rises to the level of fundamental error. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). Accordingly, the trial court’s order revoking Appellant’s probation is reversed.

However, we affirm the written order revoking Appellant’s community control and the seven-year prison term. We find harmless the error on the part of the trial judge in mistakenly basing Appellant’s sentence on four, rather than three, probation violations, because Appellant’s sentence was still within the permitted range for one having three prior probation violations. To rectify this error, the case is remanded to the trial judge ⅛ order that the court may correct the guidelines seoresheet to reflect the proper number of violations,

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

GLICKSTEIN and DELL, JJ„ and OFTEDAL, RICHARD L., Associate Judge, concur.