Hernandez v. State , 254 So. 3d 1091 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed August 29, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1636
Lower Tribunal No. 14-22651
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Landon Hernandez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,
Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken,
Assistant Attorney General, for appellee.
Before SCALES, LUCK, and LINDSEY, JJ.
ON CONFESSION OF ERROR
PER CURIAM.
Landon Hernandez appeals the trial court’s order revoking his probation.
Based upon a review of the record before us and the State’s appropriate confession
of error, we affirm the revocation but remand with instructions that the written
order of revocation be corrected to conform to the trial court’s oral
pronouncements made at the probation revocation hearing.
Following a probation revocation hearing held on June 21, 2017, the trial
court orally pronounced that it was revoking Hernandez’s probation because the
State established by a preponderance of the evidence that he willfully and
substantially violated his probation by: being a convicted felon in possession of a
firearm (condition 5); possessing, carrying, or owning a firearm or weapon
(condition 4); changing his residence without first procuring consent from his
probation officer (condition 3); and committing an aggravated assault (condition
5). However, the trial court also found that the State specifically failed to prove
that Hernandez violated his probation for: committing a battery (condition 5),
failing to pay restitution (condition 2), and failing to complete his community
service hours (condition 8). A review of the record and revocation hearing
transcript also reveals that the trial court made no finding as to whether Hernandez
violated his probation by improperly exhibiting a dangerous weapon or firearm
(condition 5), or by failing to report to his probation office (condition 1).
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On July 11, 2017, the trial court entered its written order revoking
Hernandez’s probation. The written probation revocation order, however, does not
conform to the oral pronouncements the trial court made at the revocation hearing.
“A written order of probation revocation must conform to the court's oral
pronouncement at a defendant's probation revocation hearing.” Laffitte v. State,
16 So. 3d 315, 316 (Fla. 3d DCA 2009) (quoting Salvatierra v. State, 691 So. 2d
32 (Fla. 3d DCA 1997)). In addition to the four violations the trial court orally
pronounced had been proven by the State, the written revocation order also reflects
that Hernandez committed the three probation violations that the trial court
specifically declined to revoke probation for—committing a battery (condition 5),
failing to pay restitution (condition 2), and failing to complete his community
service hours (condition 8). Additionally, the written revocation order also reflects
that Hernandez committed the two probation violations that the trial court made no
finding on—improperly exhibiting a dangerous weapon or firearm (condition 5)
and failing to report to his probation office (condition 1).
Indeed, the State’s confession of error concedes as much and requests that
the matter be remanded to the trial court for the sole purpose of correcting the
written revocation order in order to conform to the trial court’s oral
pronouncement. We agree. See Gonzalez v. State, 217 So. 3d 235, 235 (Fla. 3d
DCA 2017) (remanding with instructions “for correction of the written order of
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revocation so that it conforms to the court’s oral pronouncement.”); see also Jones
v. State, 686 So. 2d 701 (Fla. 3d DCA 1996) (citing Cushion v. State, 637 So. 2d 2(Fla. 3d DCA 1994)). As such, we remand for correction of the written order for
revocation so that it conforms to the trial court’s oral pronouncement.1
Affirmed in part, reversed in part, and remanded with instructions.
1Hernandez need not be present for this purpose. See Sellers v. State, 793 So. 2d
1148 (Fla. 3d DCA 2001) (citing Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA
1979)).
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