          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-0556
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ANTHONY JEROME CROMARTIE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   ___________________________


On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.

                          March 29, 2018

PER CURIAM.

     Appellant appeals from a judgment and sentence entered
after the trial court found he had willfully and substantially
violated his probation. He argues that we should reverse the
revocation order because one of the seven violations the circuit
court found is not supported by sufficient evidence. While we agree
with the premise of Appellant’s argument, we do not agree with
the conclusion. We find that the trial court’s error is harmless and
affirm its order revoking his probation and the judgment and
sentence that followed.

    A jury found that Appellant had illegally possessed cocaine,
marijuana, and drug equipment, and the court sentenced him to
serve a total of three years on probation. The terms of his probation
required, among other things, that he live without violating the
law, not associate with individuals engaged in criminal activity,
promptly and truthfully answer questions from his probation
officers, completely abstain from the use of alcohol and illicit
drugs, and submit to random drug screenings. The testimony
produced at the hearing supports the court’s findings that he twice
tested positive for marijuana and would not admit to drug use
when queried by his probation officers on either occasion.
However, there was no evidence that he associated with anyone
engaged in criminal activity. Therefore, the court’s finding that he
had done so is not supported by the record. See Savage v. State,
120 So. 3d 619, 621 (Fla. 2d DCA 2013) (“Many appellate decisions
state that a revocation order is reviewed for an abuse of discretion;
in actuality, on appeal, we first assess whether the finding of a
willful and substantial violation is supported by competent
substantial evidence.”).

     We must next determine whether the court would have
revoked Appellant’s probation and sentenced him to the same two
years in prison had it declined to find that Appellant associated
with someone engaged in criminal activity. See Reed v. State, 127
So. 3d 817, 819 (Fla. 2d DCA 2013); David v. State, 75 So. 3d 386,
387 (Fla. 1st DCA 2011). The court clearly stated it was revoking
Appellant’s probation and sentencing him to two years in prison
because he continued to use drugs while on probation for
possessing drugs. The court never mentioned an association with
someone involved in criminal activity. Therefore, it is clear that
the court would have made the same decisions had it properly
found that there was no evidence Appellant associated with people
engaged in criminal activity. We therefore affirm the court’s
decision to revoke Appellant’s probation and sentence him to two
years in prison. We however instruct the trial court to strike the
order revoking probation and enter an amended revocation order
that omits the finding that Appellant violated term six of his
probation. See Reed, 127 So. 3d at 819–20.

    AFFIRMED and REMANDED with instructions.

WETHERELL, MAKAR, and KELSEY, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant
Attorney General, and Holly N. Simcox, Assistant Attorney
General, Tallahassee, for Appellee.




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