Opinion
No. 95-02582.
November 27, 1996.
Appeal from the Circuit Court for Hendry County; James D. Sloan, Acting Circuit Judge.
James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Tracy L. Martinell, Assistant Attorney General, Tampa, for Appellee.
Arthur Mabry appeals his judgment and sentences for revocation of community control. The underlying crimes in the original sentences were three counts of robbery with a firearm, kidnapping, aggravated assault on a law enforcement officer, and burglary. We affirm the judgment and sentences for violation of three of the conditions of community control. We remand for correction of the order of revocation to delete reference to violation of two other conditions of community control.
We conclude that there is substantial competent evidence to support revocation for violating community control conditions (3), (9), and (12) and affirm revocation on that basis without discussion. However, as to conditions (2) and (16), there was no evidence to establish that Mabry had the ability to pay court costs and restitution; therefore, the trial court could not revoke Mabry's community control on that basis. See Smith v. State, 642 So.2d 1105 (Fla. 4th DCA 1994); Green v. State, 620 So.2d 1126 (Fla. 1st DCA 1993).
We affirm the judgment and sentences for revocation of community control conditions (3), (9), and (12). We remand the case to the trial court to delete any references in the judgment and sentences which reflect violation of community control conditions (2) and (16).
DANAHY, A.C.J., and FULMER, J., concur.