ADAN ESPINOZA-BRITO v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ADAN ESPINOZA-BRITO, )
)
Appellant, )
)
v. ) Case No. 2D16-3752
)
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed May 9, 2018.
Appeal from the Circuit Court for Polk
County; Glenn T. Shelby, Judge.
Howard L. Dimmig, II, Public Defender,
and Kevin Briggs, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa,
for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
This appeal was filed pursuant to Anders v. California, 386 U.S. 738(1967). We affirm the revocation of Espinoza-Brito's probation and the sentence
imposed, but we reverse a superfluous judgment and remand for entry of a written order
of revocation of probation.
In 2011, Espinoza-Brito pleaded nolo contendere to a single third-degree
felony. The trial court adjudicated him guilty and sentenced him to sixty months'
probation. In 2016, he admitted that he had violated condition five of that probation by
committing a new law offense. The trial court accepted his admission, determined that
he had willfully and substantially violated the terms of his probation by committing the
alleged offense, revoked his probation, and sentenced him to eighteen months in
prison, to be served consecutively to a federal sentence that he was already serving.
Upon our independent review of the record, we affirm without further
comment the revocation of Espinoza-Brito's probation and the sentence imposed. We
remand, however, for the correction of two errors that are apparent on the face of the
record. First, upon revocation, the trial court entered a new, superfluous judgment.
Pursuant to section 948.06(2)(e), Florida Statutes (2016), "If . . . probation or community
control is revoked, the court shall adjudge the probationer or offender guilty of the
offense charged and proven or admitted, unless he or she has previously been
adjudged guilty . . . ." (Emphasis added.) "Thus, the circuit court only enters a
judgment on a violation of probation in those instances when it withheld an adjudication
of guilt, i.e., withheld judgment, at the time it originally imposed probation." Jackson v.
State, 56 So. 3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J., concurring). "Entering [the
same judgment] a second time in conjunction with the entry of the new written
sentence[] is an error, correctable in an Anders proceeding, that requires the reversal of
the new and superfluous written judgment[]." Freeman v. State, 225 So. 3d 929, 930
(Fla. 2d DCA 2017).
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Second, although the record supports the trial court's oral findings and its
determination that Espinoza-Brito had willfully and substantially violated the terms of his
probation, the trial court does not appear to have entered the requisite written
revocation order—the statement on the sentencing order, "And the court having placed
the defendant on probation/community control and having subsequently revoked the
defendant's probation/community control," does not suffice. See Dolinger v. State, 779
So. 2d 419, 421 (Fla. 2d DCA 2000) ("[T]he written sentence also indicates that
Dolinger’s probation was revoked. Nevertheless, the trial court erred by failing to enter
a written revocation order and is directed to do so on remand."); Donley v. State, 557
So. 2d 943, 944-45 (Fla. 2d DCA 1990) ("The record contains forms entitled 'Memo of
Sentence of the Court' and uniform sentencing orders . . . . Neither the forms nor the
sentencing orders are sufficient. When a court finds that a probationer has violated his
probation, it must enter a formal order setting forth the conditions that it finds were
violated.").
Accordingly, we reverse the superfluous, unauthorized judgment entered
in September 2016 and direct that it be stricken on remand. We further direct that the
trial court on remand enter a written order of revocation reflecting the condition of
probation that Espinoza-Brito admitted violating.1 In all other respects, we affirm.
Affirmed in part; reversed in part; remanded with instructions.
VILLANTI and SLEET, JJ., Concur.
1Espinoza-Britoneed not be present for the entry of the written order. See
Mitchell v. State, 238 So.3d 386, 387 (Fla. 3d DCA 2018).
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