NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ADAN ESPINOZA-BRITO, )

)

Appellant, )

)

v. ) Case No. 2D16-3752

)

)

STATE OF FLORIDA, )

)

Appellee. )

________________________________ )

Opinion filed May 9, 2018. 

Appeal from the Circuit Court for Polk 

County; Glenn T. Shelby, Judge.

Howard L. Dimmig, II, Public Defender, 

and Kevin Briggs, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and David Campbell, 

Assistant Attorney General, Tampa, 

for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738 

(1967). We affirm the revocation of Espinoza-Brito's probation and the sentence 

imposed, but we reverse a superfluous judgment and remand for entry of a written order 

of revocation of probation. 
- 2 -

In 2011, Espinoza-Brito pleaded nolo contendere to a single third-degree 

felony. The trial court adjudicated him guilty and sentenced him to sixty months' 

probation. In 2016, he admitted that he had violated condition five of that probation by 

committing a new law offense. The trial court accepted his admission, determined that 

he had willfully and substantially violated the terms of his probation by committing the 

alleged offense, revoked his probation, and sentenced him to eighteen months in 

prison, to be served consecutively to a federal sentence that he was already serving.

Upon our independent review of the record, we affirm without further 

comment the revocation of Espinoza-Brito's probation and the sentence imposed. We 

remand, however, for the correction of two errors that are apparent on the face of the 

record. First, upon revocation, the trial court entered a new, superfluous judgment. 

Pursuant to section 948.06(2)(e), Florida Statutes (2016), "If . . . probation or community 

control is revoked, the court shall adjudge the probationer or offender guilty of the 

offense charged and proven or admitted, unless he or she has previously been 

adjudged guilty . . . ." (Emphasis added.) "Thus, the circuit court only enters a 

judgment on a violation of probation in those instances when it withheld an adjudication 

of guilt, i.e., withheld judgment, at the time it originally imposed probation." Jackson v. 

State, 56 So. 3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J., concurring). "Entering [the 

same judgment] a second time in conjunction with the entry of the new written 

sentence[] is an error, correctable in an Anders proceeding, that requires the reversal of 

the new and superfluous written judgment[]." Freeman v. State, 225 So. 3d 929, 930 

(Fla. 2d DCA 2017). 
- 3 -

Second, although the record supports the trial court's oral findings and its 

determination that Espinoza-Brito had willfully and substantially violated the terms of his 

probation, the trial court does not appear to have entered the requisite written 

revocation order—the statement on the sentencing order, "And the court having placed 

the defendant on probation/community control and having subsequently revoked the 

defendant's probation/community control," does not suffice. See Dolinger v. State, 779 

So. 2d 419, 421 (Fla. 2d DCA 2000) ("[T]he written sentence also indicates that 

Dolinger’s probation was revoked. Nevertheless, the trial court erred by failing to enter 

a written revocation order and is directed to do so on remand."); Donley v. State, 557 

So. 2d 943, 944-45 (Fla. 2d DCA 1990) ("The record contains forms entitled 'Memo of 

Sentence of the Court' and uniform sentencing orders . . . . Neither the forms nor the 

sentencing orders are sufficient. When a court finds that a probationer has violated his 

probation, it must enter a formal order setting forth the conditions that it finds were 

violated."). 

Accordingly, we reverse the superfluous, unauthorized judgment entered 

in September 2016 and direct that it be stricken on remand. We further direct that the 

trial court on remand enter a written order of revocation reflecting the condition of 

probation that Espinoza-Brito admitted violating.1 In all other respects, we affirm.

Affirmed in part; reversed in part; remanded with instructions.

VILLANTI and SLEET, JJ., Concur.

1Espinoza-Brito need not be present for the entry of the written order. See 

Mitchell v. State, 238 So.3d 386, 387 (Fla. 3d DCA 2018).