FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D20-2965

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IAN M. BERG,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Bay County.

Dustin Stephenson, Judge.

September 29, 2021

PER CURIAM.

In this appeal filed pursuant to Anders v. California, 386 U.S. 

738 (1967), we affirm the revocation of Appellant’s probation and 

the resulting sentence for the underlying offense of grand theft. 

However, we remand with directions that the trial court strike a 

technical violation from the revocation order and correct the 

revocation order to conform to the court’s oral pronouncement.

The trial court found that Appellant violated condition three 

of his probation by changing his residence without the consent of 

his probation officer. Appellant’s probation officer testified that 

she went to Appellant’s listed residence and was told by 

Appellant’s father that Appellant was not at the house, that he did 

not know Appellant’s whereabouts, that he had a trespass 
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injunction against Appellant, and that Appellant was not allowed 

to come back. Such hearsay alone is not sufficient to establish that 

Appellant changed his residence in the absence of any nonhearsay 

evidence to corroborate it. See Rutland v. State, 166 So. 3d 878 

(Fla. 1st DCA 2015) (observing that “a probation officer’s hearsay 

testimony, by itself, that another person told him or her the 

probationer no longer lived at a residence is insufficient to support 

a change of residence violation; the cases are clear and legion”); 

Webb v. State, 154 So. 3d 1186, 1188 (Fla. 4th DCA 2015) (holding 

that the evidence was insufficient to establish that defendant 

changed his residence without permission where defendant’s 

probation officer made a single visit to defendant’s address to find 

defendant and was told by defendant’s aunt and his mother that 

defendant no longer lived there); Cito v. State, 721 So. 2d 1192 (Fla. 

2d DCA 1998) (holding that the evidence was insufficient to 

establish that defendant changed his residence without permission 

where the only evidence was hearsay testimony from defendant’s 

probation officer that defendant’s mother stated that she did not 

know where he was). 

Although Appellant’s probation officer further testified that 

she subsequently spoke to Appellant on the phone about his desire 

to move to Panama City, she did not testify that Appellant 

admitted changing his residence. Appellant’s probation officer also 

testified that she instructed Appellant to come into the office the 

next day so that they could find somewhere for Appellant to stay 

because she realized that appellant was essentially homeless. To 

the extent the trial court found that Appellant failed to report as 

instructed, this could not be used as a basis to revoke Appellant’s 

probation because it was not charged in the probation violation 

affidavit. Grimsley v. State, 830 So. 2d 118, 120 (Fla. 2d DCA 

2002). Furthermore, Appellant could not be found to have willfully 

violated his probation due to forced homelessness. See Davis v. 

State, 276 So. 3d 119 (Fla. 2d DCA 2019); Charles v. State, 209 So. 

3d 32, 35 (Fla. 4th DCA 2016); Bravo v. State, 268 So. 3d 193, 196 

(Fla. 2d DCA 2018). 

Because the trial court erred in finding that Appellant 

violated his probation by changing his residence without his 

probation officer’s consent, we remand with directions that the 

trial court strike the violation of condition three from the 
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revocation order. However, we affirm the revocation of Appellant’s 

probation based on the trial court’s determination that Appellant 

also violated his probation by committing the new offenses of 

armed trespass and resisting an officer without violence. See 

Fuentes v. State, 219 So. 3d 956, 958 n.3 (Fla. 3d DCA 2017); 

Collins v. State, 446 So. 2d 268, 269 (Fla. 2d DCA 1984).

Finally, the trial court entered an amended revocation order 

indicating that Appellant violated condition five of his probation

by committing the criminal offense of armed burglary of a 

dwelling. This conflicts with the trial court’s oral pronouncement 

finding that Appellant committed the lesser criminal offense of 

armed trespass. Owens v. State, 141 So. 3d 259 (Fla. 3d DCA 2014). 

The trial court’s written order must conform to its oral 

pronouncement. See Thompson v. State, 965 So. 2d 1250, 1251 (Fla. 

1st DCA 2007) (“When a conflict exists between an oral revocation 

pronouncement and the written order revoking probation, the oral 

pronouncement will control.”). Therefore, we remand with 

directions that the trial court correct the revocation order to 

conform to its oral pronouncement.

AFFIRMED and REMANDED with directions.

ROBERTS and JAY, JJ., concur; ROWE, C.J., concurs in result only.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant 

Public Defender, Tallahassee, for Appellant; Ian M. Berg, pro se.

Ashley Moody, Attorney General, and Virginia Harris, Assistant 

Attorney General, Tallahassee, for Appellee.