Genovese v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ARTHUR A. GENOVESE, DOC #Y09175, )
)
Appellant, )
)
v. ) Case No. 2D15-4892
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed May 26, 2017.
Appeal from the Circuit Court for Charlotte
County; George C. Richards, Judge.
Arthur A. Genovese, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin-
Schomaker, Assistant Attorney General,
Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Arthur A. Genovese appeals the revocation of his probation and resulting
sentence. We affirm the revocation of probation and sentence without further comment
but remand for the circuit court to correct a scrivener's error in the written order of
revocation.
After the parties fully briefed this appeal, this court, in an unpublished
order, relinquished jurisdiction for the circuit court to enter a signed, written order of
revocation. See Greene v. State, 919 So. 2d 684, 685 (Fla. 2d DCA 2006) (explaining
that we will relinquish jurisdiction for circuit court to enter order of revocation when
necessary to perfect our jurisdiction). The order that the circuit court subsequently
entered indicates that Genovese violated condition 5 of his probation three times, as
alleged in the violation affidavit, but indicates further that, at the September 29, 2015,
violation hearing, Genovese also "was found in willful and substantial violation of
condition (09) . . . as stated in the affidavit." At that hearing, however, the trial court
explicitly stated that the State proved that Genovese had thrice violated condition 5 but
failed to prove that he had violated condition 17—a violation of condition 9 had not even
been alleged in the violation affidavit. Thus, the discrepancy between the written order
and the court's oral pronouncement at the hearing is clearly the result of a scrivener's
error in the written order.1
Generally, this type of scrivener's error does not constitute fundamental
error that should be corrected on appeal unless the defendant has preserved the issue
for review by first seeking relief in the circuit court via a motion pursuant to Florida Rule
of Criminal Procedure 3.800(b). See Thomas v. State, 763 So. 2d 316, 316 n.1 (Fla.
2000). But because the issue in this case arose while the appeal was already pending
1
Whenever such a discrepancy arises, the oral pronouncement governs
over the written order. Turner v. State, 873 So. 2d 480, 481 (Fla. 2d DCA 2004) ("A
written order of revocation of probation must conform with the trial court's oral
pronouncement.").
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and only after it had been fully briefed, Genovese was foreclosed from seeking relief
under either rule 3.800(b)(1) or rule 3.800(b)(2).
Given this atypical procedural posture, we remand for the circuit court to
enter an amended written order of revocation that conforms to its oral pronouncement at
the September 29, 2015, hearing. See Smith v. State, 780 So. 2d 166, 167 n.1 (Fla. 2d
DCA 2001).
Affirmed; remanded with directions.
CASANUEVA and BLACK, JJ., Concur.
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