JERRY MCNEIL A/K/A JERRY MCNEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry McNeil appealed a trial court order revoking his probation and sentencing him to thirty-six months in prison. The appellate court affirmed the revocation but remanded for correction of the written order to reflect the trial court's oral pronouncement regarding which probation conditions were violated and to enter a finding regarding McNeil's ability to pay imposed costs.
The appellate court affirmed the revocation but remanded for entry of a corrected written order reflecting the oral pronouncement of which conditions were violated. The court also remanded for entry of a finding that McNeil had the ability to pay the costs, as the record supported such a finding despite his failure to prove bona fide efforts to acquire resources.
[1] A written order of probation revocation must conform to the trial court's oral pronouncement.
[2] Where a written order of probation revocation contains discrepancies with the oral pronouncement, the case should be remanded for correction.
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Join FLexlaw to unlock all legal intelligence“Because the oral pronouncement controls, see Bexley v. State, 490 So.2d 226 (Fla. 2d DCA 1986), and the State has conceded error, we remand for correction of the written order to conform with the oral pronouncement.”
Establishes that oral pronouncements of probation violations control over written orders and error requires remand for correction.
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Join FLexlaw to unlock all legal intelligenceMcNeil was on probation and violated certain conditions. The trial court orally found violations of conditions 2, 37-41, 43, and 47, but the written o…
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DAVIS, Judge.
Jerry McNeil, a/k/a Jerry McNeal, challenges the trial court order revoking his probation and sentencing him to thirty-six months in prison. We affirm but remand for the entry of a corrected written order of revocation of probation.
The trial court’s written order of revocation does not correctly reflect the court’s oral pronouncement as to the conditions of probation that the court found that McNeil had violated. The trial court orally found that McNeil violated conditions 2, 37-41, 43, and 47. However, the written order incorrectly stated that McNeil violated conditions 3, 37-41, and 42-47. Because the oral pronouncement controls, see Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986), and the State has conceded error, we remand for correction of the written order to conform with the oral pronouncement. See Cunningham v. State, 818 So. 2d 685 (Fla. 2d DCA 2002).
We also remand for entry of a finding that McNeil had the ability to pay certain costs that the court imposed. Although McNeil argues on appeal that the trial court’s failure to make a finding that he had the ability to pay those costs requires reversal of the revocation based on his failure to pay the costs, we cannot agree. Pursuant to McQuitter v. State, 622 So. 2d 590, 592 (Fla. 1st DCA 1993), “where the record would support a finding of ability to pay, it is appropriate to remand for the purpose of permitting the trial court to make the required finding.”
In the instant case, the State introduced evidence that McNeil had held a paying job in December 2003. However, by McNeil’s own admission at the revocation hearing, he voluntarily quit that job, leaving him unemployed and without funds to pay the costs involved. Pursuant to section 948.06(5), Florida Statutes (2003), once a probationer asserts the inability to pay, he or she must prove by clear and convincing evidence that he or she does not have the present resources available to pay despite “sufficient bona fide efforts legally to acquire the resources to do so.” Because defense counsel failed to attempt to rehabilitate McNeil by showing that he had made bona fide efforts to acquire the resources to pay, we conclude that the record supports a finding that McNeil had the ability to pay the costs. Accordingly, the trial court did not err in revoking McNeil’s probation based on his failure to pay the contested costs. Because this record would support a finding that McNeil had the ability to pay, we remand for the entry of such a finding in the corrected written order of revocation.
Affirmed; remanded for entry of corrected order of revocation of probation.
WHATLEY and LaROSE, JJ., Concur.
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Turner v. State, 261 So. 3d 729 (Fla. 2d DCA 2018)…sentencing hearing transcript demonstrates that the trial court found Mr. Turner in violation of each of the allegations in the amended violation affidavit. Thus, remand is necessary for correction of the revocation order. See McNeil v. State, 908 So. 2d 556, 557-58 (Fla. 2d DCA 2005) (remanding for correction of probation revocation order to conform to the trial court's oral pronouncement of the conditions violated). Conclusion For the reasons explained above, we affirm the revocation of Mr. Turner's…
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Bitzer v. State, 958 So. 2d 1029 (Fla. 5th DCA 2007)…olations of conditions (3), (9) and (45). It is well settled that where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Knight v. State, 954 So. 2d 1266 (Fla. 5th DCA 2007); McNeil v. State, 908 So. 2d 556 (Fla. 2d DCA 2005). The cause is remanded solely for the purpose of enabling the trial court to enter a written order of revocation of probation, nunc pro tunc, in accordance with its oral pronouncement. The defendant need not be present for this…
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Kuczko v. State, 76 So. 3d 357 (Fla. 2d DCA 2011)…of only one condition. We therefore remand for the limited purpose of the entry of a corrected written order of revocation which conforms with the oral pronouncement. See Harvester v. State, 62 So. 3d 1235, 1235 (Fla. 2d DCA 2011); McNeil v. State, 908 So. 2d 556, 557 (Fla. 2d DCA 2005). Affirmed and remanded for entry of a corrected order. VILLANTI and CRENSHAW, JJ., Concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McQUITTER v. State, 622 So. 2d 590 (Fla. 1st DCA 1993)
- Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986)
- Cunningham v. State, 818 So. 2d 685 (Fla. 2d DCA 2002)