Summary
remanding for correction of a scrivener's error in the revocation order incorrectly indicating that the defendant had admitted to violating a condition of his probation where the record showed the defendant had contested the fact that he had violated the condition
Summary of this case from Edwards v. StateOpinion
No. 2D10–2158.
2011-08-19
Jonathan CALDWELL, Sr., Appellant,v.STATE of Florida, Appellee.
James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
Jonathan Caldwell appeals the revocation of his probation for lewd and lascivious battery upon an elderly or disabled adult. We affirm without comment the trial court's finding that Caldwell violated his probation. However, Caldwell argues, the State concedes, and we agree that the trial court erred by failing to hear any argument on sentencing. See Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (stating a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion (citing Black v. Romano, 471 U.S. 606, 614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985))). Thus, we remand for the limited purpose of a sentencing hearing, at which Caldwell can present mitigating evidence.
It appears that the trial judge on this case, Judge Thomas S. Reese, retired in 2010. On remand, this issue should be addressed pursuant to Florida Rule of Criminal Procedure 3.700(c)(1).
Additionally, we remand for the trial court to correct a scrivener's error in
the order revoking probation. The order incorrectly states that Caldwell admitted violating probation and that the court accepted the admission; however, the record shows that the court held a hearing on the violation, that Caldwell contested the fact that he violated, and that the court found a willful and substantial violation. See Neal v. State, 62 So.3d 1277, 1278 (Fla. 2d DCA 2011).
Affirmed in part, reversed in part, and remanded for further proceedings and correction of a scrivener's error.
KHOUZAM and MORRIS, JJ., Concur.