Florida District Courts of Appeal, 2001

Gainer v. State

Florida District Courts of Appeal · Decided April 27, 2001 · Altenbernd, Patterson, Threadgill

787 So. 2d 145; 2001 Fla. App. LEXIS 5606; 2001 WL 427609 (Southern Reporter, Second Series)

Opinion of the Court

PER CURIAM.

Benjamin Gainer appeals an order revoking his probation. We affirm the revocation because there was competent, substantial evidence to support the trial court’s finding that Mr. Gainer violated conditions 3, 9, 12, and M of his probation. The written order of revocation, however, does not conform to the trial court’s oral pronouncement, in that it includes a finding that Mr. Gainer also violated condition 5. Mr. Gainer preserved this error by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).1 The State has conceded error. We therefore remand with directions to the trial court to strike that portion of the order finding a violation of condition 5.

Affirmed in part, reversed in part, and remanded.

PATTERSON, C.J., and THREADGILL and ALTENBERND, JJ„ concur.

. Even though the State has conceded error, no order was entered on this motion in the circuit court within the allotted sixty days, and thus, the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B), (2)(B).

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