County Criminal Court:  CRIMINAL LAW –Probation-– trial judge did not err in finding appellant violated probation; remand for entry of written order- when probation is revoked or modified, a written order must be entered by the trial court reciting the specific violations found.  imposing $20,775.00 in restitution on first-degree battery conviction – said amount of restitution was. Affirm revocation of probation; remand for entry of written order. Emery v. State, No. 0504832CFAES. ( Fla. 6th Cir. App. Ct. June 20, 2006).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

HEIDI JO EMERY,      

                        Appellant,

v.

 

STATE OF FLORIDA,                                               Case No: 0504832CFAES

                        Appellee.                                              Lower No: 03441883XTES    

________________________/

 

Appeal from Pasco County Court

 

County Judge Robert P. Cole

 

Joy K. Goodyear, Esq. A.P.D.

for Appellant

 

Brett A. Hiser, Esq. A.S.A.  

for Appellee

 

ORDER AND OPINION

 

This matter came before the court on defendant/appellant Heidi Jo Emery’s appeal from a   judgment and sentence entered by the Pasco County Court.  Appellant  claims that the trial court abused its discretion in finding that she committed a substantial and willful violation of her probation.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   We affirm the revocation of appellant’s probation; however, we remand for the entry of a written order conforming to the oral pronouncement.  

            On November 22, 2003, the appellant was arrested for driving under the influence.  She pled no contest and was sentenced to one year of probation on December 29, 2003[1].  On November 2, 2004, an affidavit for violation of probation was filed for failure to report for scheduled appointment on September 29, 2004, October 11, 2004, and November; failure to complete 50 hours of community service; failure to pay court supervision fees in the amount of $280.00; failure to complete the DUI program; and failure to pay fine and court costs.  On March 22, 2005 she was arrested on a warrant issued for violation of her probation.  Appellant  was sentenced to 60 days in jail for the violation of probation following an evidentiary hearing.   

Jill Wable, the misdemeanor probation officer assigned to appellant’s case, testified that she took cases over from probation officer John Rowland on July 5, 2005 .   The officer testified that she had access to all of Mr. Rowland’s files and had an opportunity to familiarize herself with the pertinent files, one of them being Heidi Jo Emery.  Wable stated that appellant was placed on probation on December 29, and has violated the conditions of that probation in that she still owed $391.00 for fines and court costs, 50 hours of community service, DUI school, proof of DUI school and any treatment that’s required. Wable testified that appellant failed to appear in September 2004, October 2004, and November 2004.  She also testified that there is no record of appellant performing  any community service.  The officer was asked if prior to November 2, 2004, there was any record of her making contact with Mr. Rowland and trying to have those community service hours made into light duty or transferred to any other type of sanction and the probation officer replied “[t]here’s no record of any medical issues.” Wable testified that since she took over the case, July 5, 2005, appellant  has not made any contact with her.   Wable testified that it is standard procedure for the probation officer to explain the conditions of probation to the probationers at the time they come under supervision.  She stated that after explaining the probation to the probationers,  he or she  is then asked to sign a document that he/she understood the terms of probation.   She testified that appellant signed such a document on January 9, 2004.

Appellant testified that it was her signature on the document regarding probation.  However, she also testified that her current medical diagnosis was “epileptic seizures.”  She was asked if there were any restrictions placed on her by her treating physician and she replied “I can’t work.” The appellant testified that the last time she held a job was 2002, prior to being placed on probation and that she has not been able to work at all while on probation due to her medical condition.    When asked if she contacted her probation officer in regards to her scheduled appointments November 29, 2004, and October 11, 2004, she testified “I can’t remember if I did or not.”  The appellant testified that her physical limitations are that she “can not lift anything.” However, she testified that she is able to stand, able to sit for more than 30 minutes at a time, and able to walk.  When asked if she has use of her arms she replied “[n]ot all the time, no.”

After argument, the court made the following findings: “I’m going to find that she’s in material violation of her probation for failure to do the 50 hours of community service or present any viable evidence to indicate that she’s unable to do any community service.  She hasn’t done one hour of community service or present any viable evidence to indicate that she’s unable to do any community service.  She hasn’t done one hour of community service. . . . She’s missed appointments, but the reason that I’m finding her guilty is her failure to do her community service hours. . . . “

We find that the state presented sufficient, competent evidence to support its allegations that the appellant violated her probation for failing to do community service. We, accordingly, affirm the revocation of appellant's probation and the subsequent sentence imposed upon her. We must, however, remand this matter to the trial court for the entry of a proper conviction order. When probation is revoked or modified, a written order must be entered by the trial court reciting the specific violations found. Feezel v. State, 463 So.2d 1244 (Fla. 2d DCA 1985). While we find no reversible error in the trial court's oral findings, we remand for the entry of a written order conforming to the oral pronouncement.
Affirmed; remanded with instructions.

IT IS THEREFORE ORDERED that the judgment is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  June,  2006.  

                                                                                    _________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

Copies to:

Joy K. Goodyear, Esq. A.S.A.

Brett A. Hiser, Esq. A.S.A.

Honorable Robert P. Cole

 




 



[1] The terms of probation at issue here were that she must enroll in and successfully complete the DWI/Substance Abuse program and pay costs; follow all requirements of DWI program evaluator; must perform 50 hours of community service; and pay a fine and court  costs.   She was also to pay $40.00 per month towards the supervision and was required to make a full report in person to her probation supervisor unless other directed by the supervisor. (The violation of probation appears to indicate that she could have reported by mail.)