Opinion
Case No. 97-1571
Opinion filed February 18, 1998 JANUARY TERM 1998
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Dwight L. Geiger, Judge; L.T. Case No. 97-53-CFA.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellee.
Lance Jensen appeals his judgment and sentence after he pled no contest to several charges including aggravated fleeing or eluding under section 316.1935(2), Florida Statutes (1997). This court lacks jurisdiction over Jensen's attempted appeal of his judgment attacking the constitutionality of section 316.1935(2). Jensen failed to raise this issue below, therefore Florida Rule of Appellate Procedure 9.140(b)(2)(A) does not afford him review. Further, Jensen's Point I on appeal does not fit within rule 9.140(b)(2)(B). Thus we strike Jensen's Point I on appeal.
As to Jensen's sentence, the state concedes Jensen's probation order must be remanded to conform condition 15 of Jensen's written probation order to the court's oral pronouncement prohibiting Jensen from drinking alcohol or using any illicit drugs. Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982) (recognizing a trial court's oral pronouncement controls over written sentence order).
DISMISSED IN PART, REVERSED IN PART, and REMANDED.
GLICKSTEIN, DELL and POLEN, JJ., concur.