IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

TERRY PAUL POWELL ,

Appellant ,
v. Case No. 5D 16

- 1810 STATE OF FLORIDA ,

Appellee

. ________________________________/ Opinion filed July 7, 2017 Appeal from the Circuit Court for Citrus County , Victor J. Musleh , Senior J udg e

. James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Nora H utchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM

. Terry Paul Powell appeals from a sentence imposed after he was convicted following a jury trial of three offenses: assault (Count I), resisting an officer with violence (Count II), and battery on a law enforcement officer (Count III). He raises two issues on appeal: first, that the trial court improperly imposed drug offender probation on Count III,2

as there was insufficient evid ence that Powell qualified as a "chronic substance abuser"
under section 94 8.20, Florida Statutes (2015) ; and second, that his sentence on Count II
contains a scrivene r' s error

. We affirm his judgment and sentence, write to explain our reasoning, and remand for correction of the scrivener's error on Count II. 1 At the sentencing hearing, the trial court sentenced Powell to five years' incarceration on Count II as a prison release e reoffender, and to three years' incarceration on Count III, consecutive to the term of imprisonment imposed on Count II, to be followe d by two years' drug offender probation. In conflict with the oral pronouncement, the written sentence on Count II reflects five years ' imprisonment to be followed by two years of drug offender probation

. This Court reviews the trial court’s order imposi ng drug offender probation for an abuse of discretion. Sutton v. State , 128 So. 3d 957, 959 (Fla. 2d DCA 2013) ( " [I]t was within the trial judge's discretion to sentence Sutton to drug offender probation if it appeared to the court that Sutton was a ' chronic substance abuser. '" ). W hile this record presents a close call, we conclude that the trial court's imposition of drug offender probation as to Count III was supported by competent, substantial evidence in the record.

1 The State conceded error on the first issue, but for a different reason than argued by Powell

. " A confession of error, however, is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state. " Perry v. State , 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (citations omitted). Specifically, the State conceded error because it believe d that battery on a law enforcement officer does not qualify for drug offender probation as it does not " fall under the statutorily enumerated categories of offenses for which drug offender probation could be imposed

. " We disagree. See State v. Hearns , 9 61 So. 2d 211, 219 (Fla. 2007) ( " [ B attery on a law enforcement officer] is not a forcible felony under section 776.08. " ); § 948.20(1), Fla. Stat. ( 2015) ( " [T ]he term ' nonviolent felony ' means a third degree felony violation under chapter 810 or any other f elony offense that is not a forcible felony as defined in s. 776.08. " ).3

The trial court had before it, among other evidence, the testimony of two law enforcement officers establishing their familiarity with Powell due to numerous encounters with him over several years

. Although the officers' testimony included only a limited factual basis , we cannot say th at their testimony was not competent evidence

. Further, the arrest affidavit indicated that Powell was under the influence of a controlled substance on the night of the incident. Given the substantial deference due the trial court here, w e find no
reversi ble error on this point. We agree that the written sentence contains a scrivener's error which should be corrected upon remand as to Count II

. " A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence. " Beard v. State , 27 So. 3d 186, 187 (Fla. 5th DCA 2010) (citing Williams v. State , 957 So. 2d 600, 603 (Fla. 2007) )

. " When a discrepancy exists, the oral pronouncement controls over the
written. " Id. In this case, the record reveals that the trial court imposed a sentence on Count II of five years ' incarceration , making no mention of drug offender probation on this
count

. The written sentence should be corrected to conform to the oral pronouncement.

AFFIRMED; REMANDED for correction of scrivener's error

. COHEN, C.J. , BERGER and EISNAUGLE, J J ., concur.