ARTHUR A. GENOVESE, DOC #Y09175, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur Genovese appealed the revocation of his probation and resulting sentence. The appellate court affirmed the revocation and sentence but remanded for the circuit court to correct a scrivener's error in the written order of revocation that did not conform to the trial court's oral pronouncement at the violation hearing.
The court affirmed the revocation of probation and the sentence because the evidence supported the trial court's findings. The court remanded for the circuit court to enter an amended written order of revocation that conforms to its oral pronouncement at the violation hearing.
[1] A written order of revocation of probation must conform with the trial court’s oral pronouncement.
[2] A scrivener's error in a written order of revocation does not constitute fundamental error on appeal unless preserved by a motion filed in the circuit court.
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Join FLexlaw to unlock all legal intelligence“A written order of revocation of probation must conform with the trial court's oral pronouncement”
Establishes the principle that when discrepancies exist between written and oral orders, the oral pronouncement governs
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Join FLexlaw to unlock all legal intelligenceGenovese was on probation and was found at a violation hearing on September 29, 2015, to have willfully and substantially violated condition 5 of his …
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Arthur A. Genovese appeals the revocation of his probation and resulting sentence. We affirm the revocation of probation and sentence without further comment but remand for the circuit court to correct a scrivener’s error in the written order of revocation.
After the parties fully briefed this appeal, this court, in an unpublished order, relinquished jurisdiction for the circuit court to enter a signed, written order of revocation. See Greene v. State, 919 So.2d 684, 685 (Fla. 2d DCA 2006) (explaining that we will relinquish jurisdiction for circuit court to enter order of revocation when necessary to perfect our jurisdiction). The order that the circuit court subsequently entered indicates that Genovese violated condition 5 of his probation three times, as alleged in the violation affidavit, *292but indicates further that, at the September 29, 2015, violation hearing, Genovese also “was found in willful and substantial violation of condition (09) ... as stated in the affidavit.” At that hearing, however, the trial court explicitly stated that the State proved that Genovese had thrice violated condition 5 but failed to prove that he had violated condition 17—-a violation of condition 9 had not even been alleged in the violation affidavit. Thus, the discrepancy between the written order and the court’s oral pronouncement at the hearing is clearly the result of a scrivener’s error in the written order.1
Generally, this type of scrivener’s error does not constitute fundamental error that should be corrected on appeal'unless the defendant has preserved the issue for review by first seeking relief in the circuit court via a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Thomas v. State, 763 So.2d 316, 316 n.1 (Fla. 2000). But because the issue in this case arose while the appeal was already pending and only after it had been fully briefed, Genovese was foreclosed from seeking relief under either rule 3.800(b)(1) or rule 3.800(b)(2).
Given this atypical procedural posture, we remand for the circuit court to enter an amended written order of revocation’that conforms to its oral pronouncement at the September 29, 2015, hearing. See Smith v. State, 780 So.2d 166, 167 n.1 (Fla. 2d DCA 2001).
Affirmed; remanded with directions.
. CASANUEVA and BLACK, JJ., Concur.
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Citator
Cited By
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Genovese v. State, 250 So. 3d 15 (Fla. 2d DCA 2018)…e Johnson v. State, 60 So. 3d 1045 (Fla. 2011); State v. Wayne, 531 So. 2d 160 (Fla. 1988); Stafford v. State, 455 So. 2d 385 (Fla. 1984); Bilyou v. State, 404 So. 2d 744 (Fla. 1981); State v. Segarra, 388 So. 2d 1017 (Fla. 1980); Genovese v. State, 226 So. 3d 291 (Fla. 2d DCA 2017); Mearns v. State, 779 So. 2d 282 (Fla. 2d DCA 1998); Harris v. State, 777 So. 2d 994 (Fla. 2d DCA 2000); Russell v. State, 487 So. 2d 366 (Fla. 2d DCA 1986); Seitz v. State, 867 So. 2d 421 (Fla. 3d DCA 2004). CASANUEVA, LUCAS, and…
Authorities Cited
- Thomas v. State, 763 So. 2d 316 (Fla. 2000)
- Turner v. State, 873 So. 2d 480 (Fla. 2d DCA 2004)
- Greene v. State, 919 So. 2d 684 (Fla. 2d DCA 2006)
- Charles v. State, 763 So. 2d 316 (Fla. 2000)
- Smith v. State, 780 So. 2d 166 (Fla. 2d DCA 2001)