ALVIN BERNARD JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2009-10-14
Nos. 2D08-1377, 2D08-1378
WHATLEY and VILLANTI, JJ., Concur.
17 So. 3d 1290 Florida District Court of Appeal, Second District (2009) Negative Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Johnson appeals the trial court's revocation of his probation and imposition of thirty-year sentences in two consolidated cases. The appellate court affirms the thirty-year sentence in one case but reverses the concurrent thirty-year sentence in the other case because it exceeded the legal maximum for the crime of conviction (attempted robbery with a firearm) and because the trial court failed to enter a proper order of revocation.


Holding

The court affirms the thirty-year sentence in case number 99-19447 but reverses the concurrent thirty-year sentence in case number 99-19445 because it exceeds the fifteen-year statutory maximum for attempted robbery with a firearm. The court also finds that the trial court failed to comply with procedural requirements by not entering a proper order of revocation of probation.


Headnotes

[1] A trial court's oral pronouncement of revocation of probation is insufficient without a written order of revocation.

[2] A scrivener's error in a judgment of conviction can render a sentence illegal on its face.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Robbery with a firearm is a first-degree felony, and the attempt to commit a first-degree felony is a second-degree felony [...] Thus, absent an unusually high score on a Criminal Punishment Code scoresheet, attempted robbery with a firearm is punishable by no more than fifteen years' imprisonment.”

Establishes the legal maximum sentence for the crime of conviction and explains why the thirty-year sentence exceeded statutory limits.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Johnson pleaded guilty to attempted robbery with a firearm in 2000 and received a split sentence of seven years' imprisonment followed by eight years'…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
ALTENBERND, Judge.

*1291ALTENBERND, Judge.

Alvin Bernard Johnson challenges the trial court’s orders revoking his probation and sentencing him to prison terms totaling thirty years. The orders were entered at a consolidated hearing on violation of probation. In case number 99-19447, the trial court revoked his probation and sentenced Mr. Johnson to thirty years in prison. We affirm this sentence without further discussion. In case number 99-19445, he received a concurrent sentence of thirty years in prison which is illegal. We reverse and remand for entry of a proper order of revocation in each of these cases and a new sentence in case number 99-19445.

In count two of case number 99-19445, Mr. Johnson was charged with attempted robbery with a firearm. In 2000, he reached a negotiated plea with the State, resulting in the entry of a judgment adjudicating him guilty of attempted robbery with a firearm and imposition of a split sentence of seven years’ imprisonment followed by eight years’ probation. After his release from prison, the State filed an affidavit of violation of probation.

At the conclusion of the hearing on the alleged violations of probation in February 2008, the trial court ruled:

Mr. Johnson, the Court finds that you are in violation of your conditions of probation specifically Condition 5 thereof in the matter of unlawful sexual activity with a minor and battery on a detention facility staff.
I assume you’ve already been adjudicated guilty of these three offenses for which you are on probation since you already did seven years prison time. So it’s the order, judgment and sentence of the Court that you be adjudicated, that your probation be revoked, and you be confined to state prison for a term of 30 years on the second, to run concurrent with that second I’ll give you 30 with credit for any time you’ve already served.

Thereafter, the trial court never entered an order of revocation of probation, despite the fact that the rules of procedure clearly specify that the trial court shall enter an order of revocation of probation after such an oral pronouncement, despite the standard form order in Florida Rule of Criminal Procedure 3.995 allowing for easy entry of such an order, and despite our opinion eighteen months earlier encouraging the judges of the Thirteenth Judicial Circuit to use the appropriate order on revocation of probation. See Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006). Instead, the trial court entered a second “judgment” of conviction in this court file. In this second order, the trial court made a scrivener’s error and adjudicated Mr. Johnson guilty of robbery with a firearm instead of attempted robbery with a firearm. As a result, the written sentence imposing a term of thirty years’ imprisonment on this count did not appear illegal on its face.

Robbery with a firearm is a first-degree felony, and the attempt to commit a first-degree felony is a second-degree felony. See §§ 777.04(4)(c), 812.13(2)(a), Fla. Stat. (1999). Thus, absent an unusually high score on a Criminal Punishment Code scoresheet, attempted robbery with a firearm is punishable by no more than fifteen years’ imprisonment. See §§ 775.082(3)(c), 777.04(4)(c), 812.13(2)(a), Fla. Stat. (1999). Accordingly, we reverse the new “judgment” entered in this case, as well as the similar “judgment” entered in case number 99-19447. On remand, the trial court shall enter orders of revocation in cases 99-19445 and 99-19447 and resentence Mr. Johnson in case number 99-19445 to a sentence not exceeding fifteen years’ imprisonment.

*1292Affirmed in part, reversed in part, and remanded.

WHATLEY and VILLANTI, JJ., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Pierce v. State, 150 So. 3d 1207 (Fla. 2d DCA 2014)
    …rim. P. 3.995. Over the years, we have repeatedly pointed out to the Thirteenth Judicial Circuit that it is using forms that are not in compliance with the rules of procedure. See Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009); Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009). We have made this observation in cases arising from at least one other circuit as well. See Bush v. State, 135 So. 3d 1108 (Fla. 2d DCA 2013); Kiburis v. State, 18 So. 3d 1254 (Fla. 2d DCA 2009). In Jackson v. State, 56 So. 3d 6…
  • Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009)
    …fied as a result of Mr. Badger’s motion for rehearing. This section of the opinion was added on rehearing. .The failure to enter proper orders of revocation has been a chronic problem in the Thirteenth Judicial Circuit. See, e.g., Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009); Dawkins v. State, 936 So. 2d 710 (Fla. 2d DCA 2006). . It may be that Mr. Badger could have agreed to waive credit for this term of community control in exchange for the favorable youthful offender sentence, but that did not occ…
  • Bush v. State, 135 So. 3d 1108 (Fla. 2d DCA 2013)
    …to be entered in a single ease. This court has previously explained that a violation of probation concerning a defendant who has already been adjudicated guilty should not be resolved by the entry of another judgment of guilt. See Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009). Second, the language of the order merely finds that the “defendant violated all of the conditions alleged in the affidavit.” Putting aside the problem a trial court would have using this form in a case like this one where at lea…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw