Opinion
No. 94-0359.
December 21, 1994.
Appeal from the Circuit Court, Broward County, Robert J. Fogan, J.
Richard I. Bellis, Law Offices of Richard I. Bellis, Plantation, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sharon A. Wood, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal by the defendant Janet Usatch from a post-trial order vacating her adjudication of guilt for grand theft entered in 1986, withholding adjudication for this offense, and extending her 1986 probationary term from ten to fifteen years. Because (1) no affidavit of violation of probation was ever filed by the state in this case [the trial court's action below was taken solely on the complainant's motion to require the defendant to pay previously ordered restitution], and (2) no evidence was adduced below that the defendant ever violated her probation for failure to make restitution "to the best of her ability," as required, we accept the state's confession of error that the order under review must be reversed as erroneously entered and the defendant's original probation reinstated. Green v. State, 638 So.2d 1006 (Fla. 4th DCA 1994).
The order appealed from is reversed, and the cause is remanded to the trial court with directions to reinstate the defendant's original adjudication of guilt and ten-year probation.
REVERSED AND REMANDED.
GLICKSTEIN and FARMER, JJ., and HUBBART, PHILLIP A., Associate Judge, concur.