# Third District Court of Appeal

State of Florida

Opinion filed May 31, 2017.

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No. 3D15-1695

Lower Tribunal Nos. 05-15245K, 09-1864A, 09-1861A, 09-1859A, 09-1840B

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### Miguel Alexander Alvarez Fuentes

,

Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Stephen T.

Millan

, Judge.

Daniel J. Tibbitt, for appellant.

Pamela Jo Bondi, Attorney General, and Keri T. Joseph

, Assistant Attorney

General, for appellee.

Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

EMAS, J.ON MOTION FOR REHEARING

We grant appellant’s motion for rehearing, withdraw our previous opinion,

and substitute the following opinion in its stead.

Appellant, Miguel Alexander Alvarez Fuentes, appeals from the trial court’s

order adjudging him in violation of his probation, revoking his probation, and

sentencing him to a total of twenty years in prison. We affirm in part, reverse in

part, and remand for entry of a written order of violation of probation.

In 2011, appellant entered a negotiated plea in five separate cases 1

, and was

sentenced to five years’ state prison followed by five years’ probation. Appellant

was released from prison in May of 2013, and commenced the probation portion of

his sentence. As a standard condition of his probation, appellant was required to

report monthly to his probation officer. On April 2, 2014, appellant’s probation

was modified to include a requirement that appellant “keep job application log

with minimum of 5 jobs per week.” Four weeks after appellant’s probation was

modified, the State filed an affidavit alleging that appellant violated his probation

by committing the crime of uttering a forged instrument on April 28, 2014. See

section 831.02, Florida Statutes (2014). The affidavit also alleged that appellant

violated his probation by failing to timely submit weekly job application logs to his

probation officer.

1 In those cases, appellant was convicted of nine separate felonies: four counts of

grand theft, four counts of burglary, and one count of racketeering.

2We affirm the trial court’s determination that appellant violated his

probation by committing the new crime of uttering a forged instrument, and reject

appellant’s contention that there was not competent substantial evidence to support

the trial court’s determination in this regard.

However, we reverse the trial court’s determination that appellant violated

his probation by failing to submit to the probation officer, on a weekly basis, his

job application logs. On appeal the State commendably conceded this was error;

while the order of probation required appellant to keep job application logs on a

weekly basis, it did not require appellant to submit the job application logs on a

weekly basis. 2

We also note that the trial court failed to enter a written order of violation of

probation. See Francique v. State

, 172 So. 3d 531 (Fla. 3d DCA 2015). On

remand, the trial court shall enter a written order of violation of probation

consistent with that portion of its oral pronouncement that appellant violated his

probation by committing the crime of uttering a forged instrument.

We find the remaining issues to be without merit. 3

2 The April 2, 2014 modified probation order required appellant to “keep job

application log with minimum of 5 jobs per week.” When appellant made his

monthly visit to his probation officer on April 9, 2014, he submitted his job

application log for the week of April 2-9. He did not submit any more weekly logs

after that, because he was arrested on April 28 for the new offense of uttering a

forged instrument. Given the language of this condition of probation, however,

appellant would be in compliance if he kept weekly logs and submitted those

weekly logs to his probation officer at each monthly reporting session.

3Affirmed in part, reversed in part and remanded with directions.

3 Appellant contends that we must remand for the trial court to determine whether

it would have revoked appellant’s probation and imposed the same sentence based

solely on the single valid violation. We reject this contention. The invalid basis for

revocation involved a technical violation, whereas the remaining valid basis for

revocation was the commission of a new substantive offense. Our review of the

entire record of the proceedings below evidences clearly that the trial court would

have revoked appellant’s probation and imposed the same sentence based solely

upon the determination that appellant committed the felony of uttering a forged

instrument while on probation. See Cohen v. State

, 171 So. 3d 179 (Fla. 3d DCA

2015); McKenzie v. State

, 201 So. 3d 29 (Fla. 3d DCA 2013).

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