NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT AUBREY ALVINCENT PIERCE, ) ) Appellant, ) ) v. ) Case No. 2D13-5504 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed November 14, 2014.

A ppeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge. Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, A ssistant Attorney General, Tampa, for A ppellee.

ALTENBERND, Judge. Aubrey Pierce appeals what should be an order of revocation of probation and sentences entered on revocation. Although we conclude that there was a basis for the trial court to find that Mr. Pierce violated his probation and that the court was authorized to revoke probation as a result of several violation s, the court had no- 2 - authority to enter second judgmen ts of conviction on October 11 , 2013, which duplicated the judgments of conviction entered on July 23, 2012 . Without entering an order of revocation of probation, the trial court had no author ity to sentence Mr. Pierce to a term in prison. Accordingly, we reverse the unauthorized judgments and the amended sentences imposed on thos e judgments. We remand for en try of a proper

order of revocation and for s entencing on that order. The facts in this case are not complex. Mr. Pierce was charge d with four felonies and a misdemeanor in June 2012. He entered into a neg otiated plea agreement under which he agreed to plead guilty in exchange for a forty-eight-month term of probation. On July 23, 2012, the trial court adjudicat ed him guilty for all five offenses, entered judgments of guilt as to the five offenses, a nd sentenced Mr. Pierce to concurrent terms of forty-eight months' probation for the felon ies and twelve months' probation for the misdemeanor. An order of probation was enter ed on that same day. Thereafter, in July 2013, the Department of Corrections filed an affidavit alleging nine violations of probation, including some relating to new substantive offenses. On October 11, 2013, the trial court conducted an ev identiary hearing on these allegations. After receiving testimony from four witness es, the trial court found violations and pronounc ed sentence stating: As such, having found you to be in violation of these terms and conditions; specifically, Condition 5 times three and Condition 6 times 2, I revoke the probation, adjudicate you guilty of Counts I, II, II I, IV, and V, sir. Count V, sentence you to time served; that's the misdemeanor. Count I, sentence you to five years Florida state prison. Count II, sentence you to five years Florida state prison consecutive to the five on Count I. Count III, sentence you to five years' probation, consecutive to the ten years prison. And Count- 3 - IV, sentence you to an additional five years consecutive probation. So it's ten prison followed by ten probation. 1 The trial court did not enter an order revoking probation on t hese findings. Instead, it entered duplicate judgments on October 11, 2013. 2 It then entered sentences in accordance with the oral pronouncement. Mr. Pierc e appealed the judgments and sentences.

The error in this case is not new to the Thirteenth Judicial C ircuit. In fairness to Judge Holder, it is likely that he is simply follow ing procedures and using forms created by others. 3 Eight years ago, we explained to the Thirteenth Judicial Circuit that we were "not aware of any rule or statute that exp ressly permit[ted] a circuit court to enter multiple judgments of conviction for the same of fense in one case" and we further explained problems with this practice. See Dawkins v. State, 936 So. 2d 710, 712 (Fla. 2d DCA 2006). For nearly ten years, the supreme cour t has provided a standard form order of revocation of probation that the circuit courts are expected to

use. See Fla. R. Crim. P. 3.995.

1 During the pendency of this appeal, Mr. Pierce filed and this c ourt granted a motion to temporarily relinquish jurisdiction, which sought relinquishment to allow the trial court to modify Mr. Pierce's sentences. During the thirty-day relinquishment period, the trial court entered amended sentence s on counts one through four, sentencing Mr. Pierce to 24.325 months' imprisonm ent on each count all to run concurrently.

2 We note that the judge did not need to "adjudicate" Mr. Pierce guilty. That had already occurred at t he first sentencing hearing. A s econd pronouncement of the adjudication of guilt is probably a harmless practice, but a defendant needs to be adjudicated guilty at a violation of probation hearing only if adjudication was withheld at the earlier sentencing hearing.

3 We actually have considerable confidence Judge Holder will be a ble to solve this long-term problem that this court obviously has been unable to solve.- 4 - Over the years, we have repeatedly pointed out to the Thirteen th Judicial Circuit that it is using forms that are not in compliance with the rules of procedure. See Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009); Johnson v. S tate, 17 So. 3d 1290 (Fla. 2d DCA 2009). We have made this observation in cases ari sing from at least one other circuit as well. See Bush v. State, 135 So. 3d 1108 (Fla . 2d DCA 2013); Kiburis v. State, 18 So. 3d 1254 (Fla. 2d DCA 2009). In Jackson v. State, 56 So. 3d 65 (Fla. 2d DCA 2011), the auth or of this opinion pointed out in a concurrence that the Department of Cor rections was contributing to this problem by the language used in the form i t required the clerks of the

circuit courts to utilize to commit a defendant to the Departme nt's custody. Id. at 66-67 (Altenbernd, J., concurring) (citi ng section 944.17(4), Florida Statutes (2010)). The Department appears to have responded to this concern by revisin g its form, the "Uniform Commitment to Custody of Department of Corrections." That form, DC6-306 (Revised 5/3/11), now includes a sentence stating: "In addition to the Original Judgment, if judicial supervisi on has been revoked subsequent t o the entry of the judgment adjudicating guilt, a certified copy of the order revo king supervision (rather than a duplicative judgment adjudicating guilt) is also attache d in support of this

commitment." http://www.dc.flcjn.net/commitment.html

. Nevertheless, more than two years after the Department revised the form, the commitment document signed on October 11, 2013, on behalf o f the Clerk of the Court for the Thirteenth Judicial Circuit, is not in accordance with the Department's form. By omitting the required sentence and sending the impermissible duplicative judgment,- 5 - the commitment papers convinced the Department to receive a pri soner whom the Department otherwise would have rejected for lack of an order o f revocation. Thus, we reverse the unauthorized judgments and sentences and remand

for the trial court to enter a proper revocation order and sent ences. We note that at the end of the revocation hearing the trial court orally pronounced violations of condition six

as well as condition five. T he affidavit does not appear to al lege violations of condition six. However, it does allege numerous violations of condition five, and we recognize that those violations would be sufficient to support an order o f revocation. Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ., Concur.