Summary
holding that a written order of probation revocation must conform to the oral pronouncement at hearing and remanding for the trial court to make that correction
Summary of this case from Bright v. StateOpinion
Case No. 2D19-1598
01-15-2021
Gilbert Delagarza RAMIREZ, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
SMITH, Judge.
Gilbert Ramirez appeals the amended order revoking his probation and resulting sentence arguing he did not willfully and substantially violate condition nine of his probation on three occasions because the evidence showed the violations were merely the result of his inept and negligent conduct. We affirm the revocation of probation and sentence without comment; however, we remand for entry of a corrected revocation order consistent with the sentencing court's oral findings.
The original order revoking Mr. Ramirez's probation and sentence dated March 27, 2019, was amended after Mr. Ramirez successfully moved to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) —the order erroneously stated that Mr. Ramirez admitted to the probation violations. The amended order of revocation of probation states the trial court found by a preponderance of the evidence that Mr. Ramirez violated his probation following an evidentiary hearing.
The order on appeal finds that Mr. Ramirez willfully and substantially violated condition nine of his probation on three separate occasions. The order was entered after an evidentiary hearing pursuant to the affidavit of violation of probation from Mr. Ramirez's probation officer. The probation officer testified at the hearing that Mr. Ramirez violated condition nine of his probation by leaving his electronic monitoring device at home on two separate occasions on October 25, 2018, and once on November 6, 2018, after he had been instructed on numerous occasions to keep the device on him at all times. condition nine provides: "You will promptly and truthfully answer all inquiries directed to you by the court or your officer, and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you."
At the conclusion of the hearing, the trial court found the State had proved the violation on November 6 but failed to prove the violations on October 25, finding:
I do find that he is guilty of violating his probation. I specifically find that it is a willful and material violation for the November 6th date as alleged in the [affidavit]. I do find that the State has failed to prove a willful and ... substantial violation on the two first ones in October ....
(Emphasis added.) However, contrary to the trial court's oral findings, the amended order incorrectly finds Mr. Ramirez violated condition nine on three occasions.
"A written order of revocation must conform to the oral pronouncement at the hearing." Narvaez v. State, 674 So. 2d 868, 869 (Fla. 2d DCA 1996) (citing Corona v. State, 642 So. 2d 667, 668 (Fla. 3d DCA 1994) (reversing, in part, so that the written order, which found defendant committed eleven violations as alleged by the State, conformed to trial court's oral findings, which did not find that defendant committed all eleven violations)); see also Smith v. State, 100 So. 3d 253, 254 (Fla. 3d DCA 2012) (remanding for entry of a written revocation of probation order that correctly reflects the trial court's oral ruling finding the defendant had violated one condition of probation, not the three included in the written order). Here, the written order finds that Mr. Ramirez violated condition nine on the three occasions alleged in the affidavit of violation of probation. However, while the trial court found that Mr. Ramirez willfully and substantially violated condition nine of his probation on November 6, the trial court orally pronounced that the State failed to prove that the two alleged violations on October 25 were willful, substantial violations of condition nine. Thus, we affirm the trial court's decision to revoke Mr. Ramirez's probation, but we remand this case for the trial court to correct the revocation order by clarifying that Mr. Ramirez was found to have willfully and substantially violated condition nine of his probation the one time, on November 6, 2018. Mr. Ramirez need not be present for the entry of the second amended revocation order. See Narvaez, 674 So. 2d at 869.
We note that the amended order of revocation of probation incorrectly lists the date of the October violations as October 20, 2018, instead of the correct date of October 25, 2018. Because we are remanding for the trial court to clarify that Mr. Ramirez only willfully and substantially violated condition nine of his probation on one occasion, November 6, 2018, this scrivener's error should be resolved with the second amended order of violation of probation.
Affirmed; remanded with instructions.
NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.