BRYAN SHACKER, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2013-01-30

No. 3D11-256

Before WELLS, C.J., and FERNANDEZ and LOGUE, JJ.

106 So. 3d 36 Florida District Court of Appeal, Third District (2013) Positive Treatment

Cited by 8 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

Bryan Shacker appeals the revocation of his probation for sexual crimes committed in 2003. The court affirms the revocation and sentence but remands to correct the written order of revocation, which listed nine violations when the trial judge orally found only five violations proven.

Holding

The court affirms the probation revocation and sentence as the trial court properly found five violations. However, the court reverses in part and remands because the written order must be corrected to reflect only the five violations the trial judge orally found proven, striking violations 1, 5, 7, and 8.

Headnotes

[1] A written order revoking probation must accurately reflect the trial court's oral pronouncement of violations.

[2] A trial court may find that a defendant committed some, but not all, alleged probation violations.

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Key Quotes

“Following an evidentiary hearing, the trial court announced from the bench that Shacker committed five of the nine alleged violations: violations two, three, four, six, and nine. The trial court also concluded that the State failed to prove that Shacker committed the remaining four alleged violations. The written order of revocation of probation, however, reflected that Shacker committed all nine alleged violations.”
Establishes the discrepancy between the trial judge's oral pronouncement and the written order, which is the basis for the remand

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Facts & Procedural History

In 2003, Shacker pleaded guilty to three counts of attempted sexual battery on a minor and three counts of lewd and lascivious assault on a child, rec…

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Topics

Written Order Oral Pronouncement Vs. Written Order Oral Pronouncement Probation Revocation

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Opinion of the Court

LOGUE, J.

Bryan Shacker appeals the trial court’s order revoking his probation and the resulting sentence. We affirm the revocation and sentence; we remand to have the written order of revocation amended to reflect the trial judge’s oral rulings.

In 2003, after a guilty plea, Shacker was adjudicated guilty of three counts of attempted sexual battery on a minor and three counts of lewd and lascivious assault on a child. He was sentenced to five years in prison followed by ten years’ probation. Seven years later, the State filed an amended affidavit alleging Shacker committed nine violations of his probation, relating to his failure to maintain contact with his probation officer.

Following an evidentiary hearing, the trial court announced from the bench that Shacker committed five of the nine alleged violations: violations two, three, four, six, and nine. The trial court also concluded that the State failed to prove that Shacker committed the remaining four alleged violations. The written order of revocation of probation, however, reflected that Shacker committed all nine alleged violations. As the State concedes, the written order should correctly reflect the oral pronouncement. See Smith v. State, 100 So.3d 258, 254 (Fla. 3d DCA 2012); see also Stark v. State, 712 So.2d 454, 455 (Fla. 2d DCA 1998); Reiter v. State, 674 So.2d 189, 190-91 (Fla. 2d DCA 1996).

Affirmed in part, reversed in part, and remanded to the Court below to strike those portions of the order finding that Shacker had committed violations 1, 5, 7 and 8.1

. Violation 1 reads “Violation of Condition (L.l) of the Order of Probation by failing to report to the probation office monthly and complete a written monthly report, in that the offender failed to report during his scheduled report period of July 6 or July 7, 2010, and has failed to report since July 15, 2010.”

Violation 5 reads "Furthermore, the offender failed to follow the instructions of his probation officer, in that on July 14, 2010, at approximately 8:20 am, officer Kimberly Schultz instructed the offender in person, at his residence, that he needed to report to the probation office and as of July 15, 2010, the offender has failed to do so.”

Violation 7 reads "Violation of Condition (1-7) of the Order of Probation by failing to pay the State of Florida the amount of $25.00 per month toward cost of supervision, plus a 4% surcharge, unless otherwise exempted, in accordance with Section 948.09, Florida Statutes, and as grounds for belief that the offender violated his probation, Officer Schultz states that the offender has failed to make a payment and owes $450.00 as of July 15, 2010.”

Violation 8 reads "Violation of Special Condition (1-8) of the Order of Probation, by failing to make electronic monitoring fee payments to the probation officer as directed in accordance with the payment instructions of the court, and as grounds for belief that the offender violated his probation, Officer Schultz states the offender has failed to make a payment and owes approximately $2382.00 as of July 13, 2010.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Cancino v. Cancino, 273 So. 3d 122 (Fla. 3d DCA 2019)
Frazier v. State, 388 So. 3d 246 (Fla. 3d DCA 2024)

…lascivious exhibition in a correctional facility, failure to pay costs of supervision, and failure to pay drug testing fees) were not proven. The oral pronouncement controls. See Smith v. State, 306 So. 3d 1147 (Fla. 3d DCA 2020); Shacker v. State, 106 So. 3d 36 (Fla. 3d DCA 2013); Smith v. State, 100 So. 3d 253 (Fla. 3d DCA 2012). However, Frazier failed to preserve this issue for appeal either by contemporaneous objection to the written revocation order, or by filing a motion to correct sentence pursuan…
Leone v. State, 114 So. 3d 448 (Fla. 3d DCA 2013)

…ns of petit theft and obstruction), the order of revocation must be corrected to reflect allegations one, two and three only (the technical violations). We therefore reverse and remand for correction of the order of revocation. See Shacker v. State, 106 So. 3d 36 (Fla. 3d DCA 2013); Smith v. State, 100 So. 3d 253 (Fla. 3d DCA 2012). Reversed and remanded.…

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Authorities Cited

Reiter v. State, 674 So. 2d 189 (Fla. 2d DCA 1996)
State v. Vincente Rodriguez, 712 So. 2d 454 (Fla. 2d DCA 1998)
Stark v. State, 712 So. 2d 454 (Fla. 2d DCA 1998)

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BRYAN SHACKER, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

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BRYAN SHACKER, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE