Opinion
No. AC-481.
March 1, 1982.
Appeal from the Circuit Court, Okaloosa County, Erwin Fleet, J.
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
Appellant appeals to this court from an order revoking his probation. The only point which merits discussion is the inclusion of Condition 4 in the written order of revocation.
Appellant's probation supervisor filed an affidavit charging appellant with violation of Conditions 1, 2, 4 and 7 of his probation. At the probation revocation hearing, the State produced no evidence whatsoever pertaining to violation of Condition 4. The charge that appellant violated Condition 4 was, therefore, dismissed upon defense counsel's oral motion to that effect. Subsequent thereto, the court questioned appellant as to factual matters concerning violation of Condition 4 and found that appellant violated his probation. The order revoking probation recited that appellant violated Conditions 1, 2, 4 and 7.
The State dismissed the charge that appellant violated Condition 4 of his probation. Therefore, a finding of a violation of that condition, as reflected in the written order of revocation was error. The evidence supports the findings that appellant violated Conditions 1, 2 and 7 and thereby supports the order below. We are unable to determine, however, whether the trial judge would have revoked probation and imposed the same sentence without a violation of Condition 4 and must reverse the order of revocation and remand this cause to the trial judge for such redetermination as may be warranted. Clemons v. State, 388 So.2d 639 (Fla. 2d DCA 1980).
BOOTH, SHIVERS and JOANOS, JJ., concur.