Ian M. Berg v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-2965
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IAN M. BERG,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
Dustin Stephenson, Judge.
September 29, 2021
PER CURIAM.
In this appeal filed pursuant to Anders v. California, 386 U.S.
738 (1967), we affirm the revocation of Appellant’s probation and
the resulting sentence for the underlying offense of grand theft.
However, we remand with directions that the trial court strike a
technical violation from the revocation order and correct the
revocation order to conform to the court’s oral pronouncement.
The trial court found that Appellant violated condition three
of his probation by changing his residence without the consent of
his probation officer. Appellant’s probation officer testified that
she went to Appellant’s listed residence and was told by
Appellant’s father that Appellant was not at the house, that he did
not know Appellant’s whereabouts, that he had a trespass
injunction against Appellant, and that Appellant was not allowed
to come back. Such hearsay alone is not sufficient to establish that
Appellant changed his residence in the absence of any nonhearsay
evidence to corroborate it. See Rutland v. State, 166 So. 3d 878(Fla. 1st DCA 2015) (observing that “a probation officer’s hearsay
testimony, by itself, that another person told him or her the
probationer no longer lived at a residence is insufficient to support
a change of residence violation; the cases are clear and legion”);
Webb v. State, 154 So. 3d 1186, 1188 (Fla. 4th DCA 2015) (holding
that the evidence was insufficient to establish that defendant
changed his residence without permission where defendant’s
probation officer made a single visit to defendant’s address to find
defendant and was told by defendant’s aunt and his mother that
defendant no longer lived there); Cito v. State, 721 So. 2d 1192 (Fla.
2d DCA 1998) (holding that the evidence was insufficient to
establish that defendant changed his residence without permission
where the only evidence was hearsay testimony from defendant’s
probation officer that defendant’s mother stated that she did not
know where he was).
Although Appellant’s probation officer further testified that
she subsequently spoke to Appellant on the phone about his desire
to move to Panama City, she did not testify that Appellant
admitted changing his residence. Appellant’s probation officer also
testified that she instructed Appellant to come into the office the
next day so that they could find somewhere for Appellant to stay
because she realized that appellant was essentially homeless. To
the extent the trial court found that Appellant failed to report as
instructed, this could not be used as a basis to revoke Appellant’s
probation because it was not charged in the probation violation
affidavit. Grimsley v. State, 830 So. 2d 118, 120 (Fla. 2d DCA
2002). Furthermore, Appellant could not be found to have willfully
violated his probation due to forced homelessness. See Davis v.
State, 276 So. 3d 119 (Fla. 2d DCA 2019); Charles v. State, 209 So.
3d 32, 35 (Fla. 4th DCA 2016); Bravo v. State, 268 So. 3d 193, 196
(Fla. 2d DCA 2018).
Because the trial court erred in finding that Appellant
violated his probation by changing his residence without his
probation officer’s consent, we remand with directions that the
trial court strike the violation of condition three from the
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revocation order. However, we affirm the revocation of Appellant’s
probation based on the trial court’s determination that Appellant
also violated his probation by committing the new offenses of
armed trespass and resisting an officer without violence. See
Fuentes v. State, 219 So. 3d 956, 958 n.3 (Fla. 3d DCA 2017);
Collins v. State, 446 So. 2d 268, 269 (Fla. 2d DCA 1984).
Finally, the trial court entered an amended revocation order
indicating that Appellant violated condition five of his probation
by committing the criminal offense of armed burglary of a
dwelling. This conflicts with the trial court’s oral pronouncement
finding that Appellant committed the lesser criminal offense of
armed trespass. Owens v. State, 141 So. 3d 259 (Fla. 3d DCA 2014).
The trial court’s written order must conform to its oral
pronouncement. See Thompson v. State, 965 So. 2d 1250, 1251 (Fla.
1st DCA 2007) (“When a conflict exists between an oral revocation
pronouncement and the written order revoking probation, the oral
pronouncement will control.”). Therefore, we remand with
directions that the trial court correct the revocation order to
conform to its oral pronouncement.
AFFIRMED and REMANDED with directions.
ROBERTS and JAY, JJ., concur; ROWE, C.J., concurs in result only.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant; Ian M. Berg, pro se.
Ashley Moody, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Appellee.
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