Opinion
Case No. 2D19-1356
04-22-2020
Derrick Lyndell BROWN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Derrick Lyndell Brown appeals the order revoking his probation for aggravated battery with a deadly weapon and the resulting sentence of fifteen years in prison. We affirm the revocation of probation and sentence without discussion except for the correction of two errors that Brown raised in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We reverse the written revocation order to the extent that it does not specify the condition of probation violated and remand for entry of a written order that does so. In addition, we reverse the portion of the sentence that does not conform to the oral pronouncement and remand for entry of an amended sentence that conforms to the oral pronouncement.
In his rule 3.800(b)(2) motion, Brown contended that the trial court failed to specify in its written revocation order the condition of probation the court found that Brown violated, thus preserving the issue for review. See Jones v. State, 898 So. 2d 209, 209 (Fla. 2d DCA 2005). Because the trial court did not rule on Brown's rule 3.800(b)(2) motion within sixty days, it is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B) ; Jones, 898 So. 2d at 210. Brown contends and the State concedes that the written revocation order must specify the condition of probation that the court found Brown to have violated. See Ramos-Haddock v. State, 282 So. 3d 1013, 1013 (Fla. 2d DCA 2019) ; Jones, 898 So. 2d at 209. The trial court found at the hearing that Brown committed a new law offense, a violation of condition 5 of his probation. Thus, we reverse the revocation order and remand for entry of a revocation order that reflects one violation of condition 5. See Ramos-Haddock, 282 So. 3d at 1014.
Brown also raised in his rule 3.800(b)(2) motion that the sentence does not comport with the oral pronouncement that Brown was designated as a violent felony offender of special concern. See § 948.06(8), Fla. Stat. (2018). Rather, the written sentence designates Brown as a habitual violent felony offender of special concern. The State acknowledges that when the written sentence is inconsistent with the trial court's oral pronouncement of sentence, the oral pronouncement controls. State v. Jones, 753 So. 2d 1276, 1277 n.2 (Fla. 2000). Based on the oral pronouncement, we reverse the inconsistent portion of the sentence and remand for entry of an amended sentence that reflects the proper designation as a violent felony offender of special concern, removing the word "habitual." See Lollis v. State, 169 So. 3d 277, 277 (Fla. 2d DCA 2015) (reversing a portion of the sentence and remanding for entry of an amended sentence consistent with the oral pronouncement).
Affirmed in part, reversed in part, and remanded.
VILLANTI and SMITH, JJ., Concur.