Romano v. State

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

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TONY ROMANO, )
)
Appellant, )
)
v. ) Case No. 2D13-5803
)
STATE OF FLORIDA, )
)
Appellee. )
)

Opinion filed November 18, 2016.

Appeal from the Circuit Court for Collier
County; James R. Shenko, Judge.

Howard L. Dimmig, II, Public Defender, and
Brooke Elvington, Assistant Public
Defender, Bartow, for Appellant.

Tony Romano, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.

MORRIS, Judge.

In this Anders1 appeal, Tony Romano appeals the revocation of his

probation for two counts of unlawful sexual activity with a minor and his resulting

1
Anders v. California, 386 U.S. 738 (1967).
sentences of prison followed by probation. We affirm the revocation of probation

without comment, but we remand for correction of the order.

During the pendency of this appeal, Romano filed a motion to correct

sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b), raising two

issues. First, he argued that the trial court erred in ordering him to pay for random drug

screening as a condition of his probation because the trial court did not orally pronounce

the condition. Second, Romano argued that the order revoking probation should be

corrected to reflect that he was found in violation after an evidentiary hearing, not that

he admitted the violation. Although the trial court granted the rule 3.800(b) motion on

July 22, 2015, it did so outside of the sixty days in which the trial court had jurisdiction to

rule on the motion. See Fla. R. Crim. P. 3.800(b)(2)(B); Williams v. State, 67 So. 3d

249, 250-51 (Fla. 2d DCA 2010). Therefore, the trial court's order is a nullity. See

Williams, 67 So. 3d at 251.

Romano's first claim that the special conditions should be stricken is

without merit. Although the requirement that Romano pay for testing is a special

condition that must be pronounced, he is not entitled to have this special condition

stricken where he raised only a procedural objection in his rule 3.800(b) motion. See

Ladson v. State, 955 So. 2d 612, 613 (Fla. 2d DCA 2007) (en banc) (holding that

because a defendant has an opportunity via rule 3.800(b) to raise a substantive

objection to the unpronounced special condition requiring him to "pay for" drug testing,

procedural due process is satisfied and he is not entitled to have the special condition

stricken absent some substantive challenge); see also Lavender v. State, No. 2D15-

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417, 2016 WL 6563107 (Fla. 2d DCA Nov. 4, 2016) (noting that cases on this issue

predating rule 3.800(b) are no longer applicable).

Regarding the second issue Romano raised in his rule 3.800(b) motion, he

is entitled to have the trial court enter a corrected order of revocation reflecting that he

was found in violation after an evidentiary hearing. See Bess v. State, 158 So. 3d 711,

712 (Fla. 2d DCA 2015); McNeil v. State, 183 So. 3d 1107, 1108 (Fla. 1st DCA 2015).

We also point out a sentencing issue that Romano may wish to raise in a

postconviction motion. Romano was sentenced to concurrent sentences of thirteen

years in prison followed by five years' probation, and such sentences exceed the fifteen-

year statutory maximum applicable to second-degree felonies. See §§ 794.05,

775.082(3)(c), Fla. Stat. (2004); Cillo v. State, 913 So. 2d 1233, 1234 (Fla. 2d DCA

2005) (holding that defendant's sentence on each second-degree felony, "which

includes the prison portion as well as the community control and probation portions,

cannot exceed the statutory maximum of fifteen years"). Further, because he did not

score more than fifteen years on his scoresheet, his lowest permissible sentence did not

permit the trial court to exceed the statutory maximum. Cf. § 921.0024(2), Fla. Stat.

(2004) ("If the lowest permissible sentence under the code exceeds the statutory

maximum sentence as provided in s. 775.082, the sentence required by the code must

be imposed."); Cillo, 913 So. 2d at 1234 n.1 (noting that section 921.0024(2) did not

apply in that case). Because this issue was not preserved, we affirm without prejudice

to Romano's right to raise this issue in a proper motion to correct illegal sentence filed

pursuant to rule 3.800(a). We note that the trial court could sentence Romano to

consecutive sentences to reach the same result. See Cillo, 913 So. 2d at 1234

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(agreeing that "the maximum sentence" defendant could receive on his three second-

degree felonies "was fifteen years unless the sentences were imposed consecutively for

a total of forty-five years").

In conclusion, we affirm Romano's revocation and resulting sentences and

remand for the trial court to enter a corrected order revoking probation.

Affirmed; remanded.

CRENSHAW and SLEET, JJ., Concur.

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