Opinion
No. 2D99-4283.
April 27, 2001.
Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
Benjamin Gainer appeals an order revoking his probation. We affirm the revocation because there was competent, substantial evidence to support the trial court's finding that Mr. Gainer violated conditions 3, 9, 12, and M of his probation. The written order of revocation, however, does not conform to the trial court's oral pronouncement, in that it includes a finding that Mr. Gainer also violated condition 5. Mr. Gainer preserved this error by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800 (b)(2). The State has conceded error. We therefore remand with directions to the trial court to strike that portion of the order finding a violation of condition 5.
Even though the State has conceded error, no order was entered on this motion in the circuit court within the allotted sixty days, and thus, the motion was deemed denied. See Fla. R.Crim. P. 3.800 (b)(1)(B), (2)(B).
Affirmed in part, reversed in part, and remanded.
PATTERSON, C.J., and THREADGILL and ALTENBERND, JJ., concur.