Denied February 26, 2020.
from the Circuit Court for Hillsborough County; Nick
L. Dimmig, II, Public Defender, and Richard P. Albertine,
Jr., Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, for Appellee.
Lee Hamiter seeks review of an order revoking his probation
and imposing sentence after he admitted violating a condition
of his probation. Following our independent review of the
record pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also In re
Anders Briefs, 581 So.2d 149 (Fla. 1991), we affirm
without comment the revocation of his probation. As set forth
below, however, we remand for entry of a corrected order of
revocation, vacate the amended judgment rendered April 25,
2019, and reverse the denial of Hamiter's motion to
correct sentencing error. We also certify a question
regarding what constitutes a "minor sentencing
error" that can be addressed on the merits within an
otherwise "no merit" Anders brief.
The Anders Appeal
admitted that he violated condition 5 of his probation by
testing positive for cocaine. The trial court accepted the
admission and revoked his probation. Before sentencing,
Hamiter moved to withdraw his admission, and the trial court
denied the motion. On appeal, Anders counsel
recommends review of this issue but asserts that he can find
no meritorious argument suggesting reversible error. We agree
with counsel's assessment. Because we note that the
revocation order fails to specify the condition of probation
that the trial court found Hamiter to have violated, however,
we remand for the court to enter an amended revocation order
specifying that condition. See Freeman v. State, 225
So.3d 929, 930 (Fla. 2d DCA 2017) (remanding for entry of an
amended order of revocation of probation "to reflect the
conditions of probation ... that he admitted to
Motion to Correct Sentencing Error
February 13, 2019, after filing his notice of appeal, Hamiter
filed a motion to correct sentencing error pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2)(B). The sole
issue in that motion was the erroneous imposition of an
additional $50,000 fine and $2500 five-percent surcharge upon
his sentencing for the probation violation.
trial court filed its order granting the motion on April 16,
2019. As defense counsel argues in the Anders brief,
however, the motion had to have been resolved and the order
filed no later than April 15, 2019. See Fla. R.
Crim. P. 3.800(b)(2)(B) (requiring that the motion be
resolved and that the order ruling on
the motion be filed within sixty days). We therefore find
ourselves in the unhappy position of having to declare the
order— and the trial court's ensuing amended
judgment rendered April 25, 2019— a nullity and
deeming the motion denied. See id. ; De La
Fuente v. State, 58 So.3d 394, 395 (Fla. 2d DCA 2011).
From the limited record before us, however, we agree with the
trial court that the $50,000 fine plus $2500 surcharge was
duplicative of a fine that had previously been imposed.
Accordingly, we reverse the deemed denial of Hamiter's
motion and remand for the trial court to (again) grant the
motion and enter an amended judgment.