       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           NORRIS COLEMAN,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D17-644

                             [August 22, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. 11-20190CF10A.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    The state filed an affidavit alleging eleven counts of appellant’s having
violated his probation. Three of the counts related to failure to pay
restitution and costs (counts 1-3), six counts related to fleeing from the
police in a car chase (counts 4-9), and two counts related to aggravated
child abuse (counts 10-11). The trial court found willful and substantial
violations for all of the counts except counts 1, 8, and 9. As to those
counts for which the court found willful and substantial violations, the
court found that the failure to pay restitution and court costs did not
warrant a prison sentence (counts 2-3). However, the court found that the
car chase and child abuse (counts 4-7 and 10-11) did warrant a prison
sentence and sentenced appellant to twelve years in prison for the robbery
offense underlying appellant’s probation.

    We affirm the order revoking appellant’s probation and imposing
sentence. However, we remand with instructions for the trial court to
strike the violations for failure to pay restitution and court costs because
the record does not demonstrate that appellant had the ability to pay those
costs. See Del Valle v. State, 80 So. 3d 999, 1011 (Fla. 2011); Allen v.
State, 464 So. 2d 256, 256 (Fla. 4th DCA 1985). Because the trial court
expressly stated that the violation for those two counts did not warrant a
prison sentence and that its sentence was based on the other violations,
“it is clear from the record that the trial court would have revoked
probation and imposed the same sentence based solely upon the
remaining counts . . . .” Mata v. State, 31 So. 3d 257, 260 (Fla. 4th DCA
2010). Therefore, we affirm the order revoking probation but remand for
the trial court to strike its findings of violations for counts 2 and 3.

   Affirmed and remanded.

LEVINE, FORST, JJ., and ARTAU, EDWARD L., Associate Judge, concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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