Summary
holding that the trial court is required to enter sentencing order for probation violation that reflects the trial court's oral pronouncement that gives the defendant prison credit for time served on a split sentence prior to sentencing
Summary of this case from Lane v. StateOpinion
Nos. 97-3452, 97-1336
Opinion filed July 29, 1998. JULY TERM, A.D. 1998
An appeal from the Circuit Court for Dade County, Maxine Cohen Lando, Judge. L.T. No. 96-29852
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before NESBITT, GODERICH, and SHEVIN, JJ.
In these consolidated appeals from a revocation of probation and the sentences thereafter entered, defendant argues that insufficient evidence was presented to revoke probation, and that upon revocation, he was not properly credited for time served. We agree with this latter point, vacate the sentences ordered and remand for correction.
This court consolidated case 97-3452, filed by the public defender, with defendant's duplicative pro se appeal, case 97-1336.
Proof sufficient to allow a criminal conviction is not required to support a trial judge's discretionary order revoking probation; the state need only show by a preponderance of the evidence that the defendant committed the offense charged. See Griffin v. State, 603 So.2d 48 (Fla. 1st DCA 1992); see also Bernhardt v. State, 288 So.2d 490, 495 (Fla. 1974). Here, both the victim and the arresting officer testified. Both witnesses substantiated the state's contention that defendant had been involved in a criminal act that led to his arrest.
Defendant subsequently plead guilty to the charges which formed the basis for the determination of probation violation.
A defendant's sentence must conform to the oral pronouncement of the sentencing judge as reflected in the transcript. See Steven v. State, 651 So.2d 831 (Fla. 1st DCA 1995); Timmons v. State, 453 So.2d 143 (Fla. 1st DCA 1984). Reviewing the record, we agree with defendant's contention that the written sentencing orders on the instant probation violation failed to reflect that the trial court awarded the defendant prison credit for all time served on the counts prior to resentencing.
Accordingly, we affirm the order of probation violation, we vacate the sentences ordered thereon and remand for the lower court to award full credit for time served.