CHARLES KEVIN HERRIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2011-01-06
No. 1D09-3175
KAHN, LEWIS, and CLARK, JJ., concur.
51 So. 3d 1207 Florida District Court of Appeal, First District (2011) Positive Treatment
Cited by 4 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

Charles Herrin appealed his conviction for misdemeanor simple battery after being acquitted of sexual battery charges. The court affirmed his conviction but reversed and remanded on a scrivener's error in the probation order that incorrectly stated he entered a nolo contendere plea rather than being convicted after jury trial.


Holding

The court held that the trial court did not actually impose sex offender treatment as a mandatory special condition of probation, making that issue moot, but the probation order contained a scrivener's error that must be corrected to reflect Herrin's jury conviction rather than a nolo contendere plea.


Headnotes

[1] A court may not impose a special condition of probation that bears no relationship to the offense for which the defendant was convicted.

[2] A scrivener's error in an order of probation, such as incorrectly stating the manner of conviction, warrants remand for correction.

Previewing 2 of 3 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

“the trial judge determined that it would be 'illegal ... to take into account any of the allegations of sexual battery[,]' because 'the jury ... found [that offense] did not occur.'”

Establishes that the trial court acknowledged it could not consider the acquitted sexual battery charges in sentencing

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

On June 3, 2009, Herrin was charged with sexual battery with slight force upon a person twelve years or older. A jury acquitted him of sexual battery …

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
PER CURIAM.

PER CURIAM.

Appellant Charles K. Herrin challenges his conviction for misdemeanor simple battery, raising four points. We address the latter two of those issues: (1) alleged error in sentencing appellant to sex offender mental health treatment; and (2) a scrivener’s error appearing in the order of probation. We reverse and remand to correct the scrivener’s error and affirm in all other respects.

On June 3, 2009, the State charged Her-rin by information with sexual battery with slight force upon a person twelve years of age or older. A jury ultimately acquitted appellant of sexual battery and of the lesser-included offense of attempted sexual battery, but found him guilty of the lesser-included offense of misdemeanor simple battery.

At the sentencing hearing, the trial judge determined that it would be “illegal ... to take into account any of the allegations of sexual battery[,]” because “the jury ... found [that offense] did not occur.” Rejecting the State’s recommendation of the maximum penalty, the court nonetheless asserted that “what the jury found [appellant] did is more offensive *1208than a run-of-the-mill battery.” Thus persuaded, the court sentenced Herrin to 30 days in county jail with credit for time served and ordered appellant to undergo a “psychological evaluation and any recommended treatment.” Defense counsel objected, asserting the “State and the PSI are specifically asking for a type of offense counseling for which my client has been acquitted.” Counsel continued, “That is improper, and what they are asking you to do, sir, is to sentence [appellant] in an illegal manner.”

Herrin argues first that the trial court erred in sentencing him to “sex offender mental health treatment,” which, he contends, bears no relation to the crime of which he was convicted. Appellant directs our attention to G.F. v. State, where the trial court imposed sex offender treatment as a special condition of probation on a juvenile found delinquent for the offense of battery. See 927 So.2d 62, 62-63 (Fla. 5th DCA 2006). Finding that the special condition “bears no relationship to the offense of which [defendant] was adjudicated delinquent[,]” the Fifth District reversed and ordered that the sex offender treatment program be stricken from the order of probation. See id. at 64-65 (citing A.M.B. v. State, 917 So.2d 239 (Fla. 5th DCA 2005)).

Though the instant case presents facts similar to those found in G.F., Herrin has not identified a need for relief. Nowhere in the record does it appear that the trial court actually sentenced appellant to “sex offender” counseling or treatment. The presentence investigation (PSI) recommends, in the event appellant is placed on probation, the completion of “sex offender counseling.” The court, however, simply required a psychological evaluation and any “recommended treatment.” The State’s recommendation notwithstanding, this issue is moot because we do not read the record as establishing that the court imposed sex offender treatment as a mandatory special condition of probation. We expressly do not read the PSI as the “psychological evaluation” ordered by the sentencing court.

Herrin also alleges the court erred by indicating in the order of probation that appellant entered a plea of nolo contendere to the charge of battery. Having reviewed the order, we observe that appellant has identified a mistake as argued-the order should read that Herrin was convicted of misdemeanor simple battery following a trial by jury. Accordingly, we REMAND the order of probation for appropriate correction of this error. See Tucker v. State, 15 So.3d 932, 932 (Fla. 4th DCA 2009) (remanding the matter to the circuit court to “correct the scrivener’s error in the judgment of conviction, which indicates that appellant entered a plea of nolo con-tendere, rather than correctly showing that appellant was found guilty after a jury trial”). The matter is AFFIRMED in all other respects.

KAHN, LEWIS, and CLARK, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Drayton v. State, 89 So. 3d 287 (Fla. 1st DCA 2012)
    …l Punishment Code score sheet and the Order of Probation reflecting that Appellant pled nolo contendere; the documents should reflect he was found guilty by jury verdict. See State v. Anderson, 905 So. 2d 111, 118 (Fla.2005); Herrin v. [*288] State, 51 So. 3d 1207, 1208 (Fla. 1st DCA 2011). AFFIRMED in part; REVERSED part; REMANDED. PADOVANO, MARSTILLER, and ROWE, JJ., concur.…
  • Penn v. State, 190 So. 3d 258 (Fla. 1st DCA 2016)
    …r where scoresheet incorrectly indicated plea instead of trial); Drayton v. State, 89 So. 3d 287, 287-88 (Fla. 1st DCA 2012) (mem.) (instructing lower court to correct documents indicating plea, where a jury found appellant guilty); Herrin v. State, 51 So. 3d 1207, 1208 (Fla. 1st DCA 2011) (remanding .for correction of scrivener’s error in manner of disposition). Judgment AFFIRMED and cause REMANDED for correction of scrivener’s error. LEWIS, OSTERHAUS, and KELSEY, JJ., concur.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw