Shacker v. State

106 So. 3d 36, 2013 WL 332134, 2013 Fla. App. LEXIS 1212

• Court: District Court of Appeal of Florida
• Decided: January 30, 2013
• Docket: No. 3D11-256
• Status: Published

Opinion

LOGUE, J.

Bryan Shacker appeals the trial court’s order revoking his probation and the resulting sentence. We affirm the revocation and sentence; we remand to have the written order of revocation amended to reflect the trial judge’s oral rulings.

In 2003, after a guilty plea, Shacker was adjudicated guilty of three counts of attempted sexual battery on a minor and three counts of lewd and lascivious assault on a child. He was sentenced to five years in prison followed by ten years’ probation. Seven years later, the State filed an amended affidavit alleging Shacker committed nine violations of his probation, relating to his failure to maintain contact with his probation officer.

Following an evidentiary hearing, the trial court announced from the bench that Shacker committed five of the nine alleged violations: violations two, three, four, six, and nine. The trial court also concluded that the State failed to prove that Shacker committed the remaining four alleged violations. The written order of revocation of probation, however, reflected that Shacker committed all nine alleged violations. As the State concedes, the written order should correctly reflect the oral pronouncement. See Smith v. State, 100 So.3d 258, 254 (Fla. 3d DCA 2012); see also Stark v. State, 712 So.2d 454, 455 (Fla. 2d DCA 1998); Reiter v. State, 674 So.2d 189, 190-91 (Fla. 2d DCA 1996).

Affirmed in part, reversed in part, and remanded to the Court below to strike those portions of the order finding that Shacker had committed violations 1, 5, 7 and 8.¹

1 . Violation 1 reads “Violation of Condition (L.l) of the Order of Probation by failing to report to the probation office monthly and complete a written monthly report, in that the offender failed to report during his scheduled report period of July 6 or July 7, 2010, and has failed to report since July 15, 2010.”

Violation 5 reads "Furthermore, the offender failed to follow the instructions of his probation officer, in that on July 14, 2010, at approximately 8:20 am, officer Kimberly Schultz instructed the offender in person, at his residence, that he needed to report to the probation office and as of July 15, 2010, the offender has failed to do so.”

Violation 7 reads "Violation of Condition (1-7) of the Order of Probation by failing to pay the State of Florida the amount of $25.00 per month toward cost of supervision, plus a 4% surcharge, unless otherwise exempted, in accordance with Section 948.09, Florida Statutes, and as grounds for belief that the offender violated his probation, Officer Schultz states that the offender has failed to make a payment and owes $450.00 as of July 15, 2010.”

Violation 8 reads "Violation of Special Condition (1-8) of the Order of Probation, by failing to make electronic monitoring fee payments to the probation officer as directed in accordance with the payment instructions of the court, and as grounds for belief that the offender violated his probation, Officer Schultz states the offender has failed to make a payment and owes approximately $2382.00 as of July 13, 2010.”