William G Green v. State of Florida

246 So. 3d 1295

• Court: District Court of Appeal of Florida
• Decided: June 28, 2018
• Docket: 17-4766
• Status: Published

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-4766 _____________________________

WILLIAM G. GREEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Columbia County. Wesley R. Douglas, Judge.

June 28, 2018

PER CURIAM.

In this Anders 1 appeal, we affirm Appellant’s judgment and sentence, but remand for the trial court to correct two scrivener’s errors in the order revoking his probation. Although the trial court orally pronounced its finding that Appellant violated Condition 5 by committing the lesser-included offense of battery, Condition 7 by using intoxicants to excess, and Special Condition 5 by failing to abstain entirely from the use of alcohol, the revocation order states that he violated the conditions of his probation in material respect by “[v]iolation of Conditions 5, 5, Special Condition 12, 7,

1 Anders v. California, 386 U.S. 738 (1967). Special Condition 5, 2, and Special condition 3.” 2 Additionally, Appellant admitted violating only Condition 7 and Special Condition 5, but the revocation order states that he “[a]dmits violation,” thereby incorrectly suggesting that he admitted violation as to each condition. We, therefore, remand for the trial court to correct the revocation order. See Harris v. State, 229 So. 3d 444, 444 (Fla. 1st DCA 2017) (affirming a judgment and sentence in an Anders appeal, but remanding for the trial court to correct the revocation order to conform to its oral pronouncement as to which alleged violations supported revocation and to accurately reflect the offense for which the appellant was on probation); see also Williams v. State, 138 So. 3d 1102, 1103 (Fla. 1st DCA 2014); Nickolas v. State, 66 So. 3d 1077 (Fla. 1st DCA 2011). Appellant need not be present. See Williams, 138 So. 3d at 1103.

AFFIRMED and REMANDED.

LEWIS, MAKAR, and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

2 Initially, the State alleged two violations of Condition 5, violations of Special Conditions 3, 5, and 12, and violations of Conditions 2 and 7. At the violation of probation hearing, the trial court granted the State’s motions to dismiss one of the alleged violations of Condition 5, the alleged violation of Condition 2, and the alleged violations of Special Conditions 3 and 12. With regard to the remaining alleged violation of Condition 5, committing the new law offense of aggravated battery, the State argued for a finding of the lesser-included offense of battery.

2 Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.