       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       DAVID EUGENE SHERROD,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2955

                             [April 15, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Michael C. Heisey, Judge; L.T. Case No.
472014CF000277A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez-
Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Appellant David Sherrod appeals an order revoking his probation for
committing the subsequent offenses of: 1) possession and sale of cocaine
within 1,000 feet of a park on August 29, 2017; 2) possession of cocaine
and resisting an officer without violence on November 6, 2017; and 3)
failure to pay both the costs of supervision and court costs. We agree with
Appellant that this case should be remanded to correct the order revoking
Appellant’s probation. We reverse the finding that Appellant violated his
probation by committing the crimes alleged to have occurred on November
6, 2017, because, as conceded by the State, no evidence of these crimes
was presented at the revocation hearing. We also reverse the findings
regarding Appellant’s failure to pay the supervision and court costs since
the trial court failed to make an express finding that Appellant had the
ability to pay these fees. See Del Valle v. State, 80 So. 3d 999, 1011 (Fla.
2011) (holding that a trial court’s failure to make an express finding of
willfulness constitutes fundamental error); Giambrone v. State, 109 So. 3d
1279, 1280 (Fla. 1st DCA 2013).
   On remand, the order revoking Appellant’s probation should be
amended to reflect these changes. Despite this decision, we find it
unnecessary for the trial court to reconsider the revocation of probation or
Appellant’s sentence. See McDoughall v. State, 133 So. 3d 1097, 1100 (Fla.
4th DCA 2014) (explaining that an appellate court will remand for entry of
a corrected order revoking probation but not require a new sentencing
hearing when the record clearly demonstrates that the trial court would
have imposed the same sentence relying exclusively on the permissible
grounds). Here, the trial court’s sentencing decision does not appear to
have been influenced by the crimes alleged to have occurred on November
6, 2017 (as no evidence of these crimes was presented at the hearing), and
the trial court has already resentenced Appellant pursuant to a rule
3.800(b) motion. The trial court originally imposed a sentence of eight
years and later modified the sentence to the permissible maximum of
seven years pursuant to the 3.800(b) motion. At the time the trial court
modified Appellant’s sentence, the court had discretion to impose a lesser
sentence, but evidently declined to do so. Because the trial court does not
appear to have considered the November 2017 transgressions during
sentencing and has already revisited the length of Appellant’s sentence,
we find that the record clearly shows that the trial court would have
imposed the same sentence based exclusively on the August 29, 2017
violations.

   Accordingly, we affirm the revocation of Appellant’s probation and the
sentence imposed by the trial court. We remand, however, for the trial
court to enter a revocation order based solely on the new law violations for
the offenses occurring on August 29, 2017.

Affirmed in part, Reversed in part, and Remanded with instructions.

CONNER and KLINGENSMITH, JJ., concur.
FORST, J., concurs in part and dissents in part with opinion.

FORST, J., concurring in part and dissenting in part.

   I respectfully dissent in part. I agree with the majority that we should
remand with instructions to enter a corrected revocation order. “A trial
court is authorized to revoke probation based on a single violation of
probation alone.” McDoughall v. State, 133 So. 3d 1097, 1100 (Fla. 4th
DCA 2014) (quoting Whitehead v. State, 22 So. 3d 846, 847-48 (Fla. 4th
DCA 2009)).      However, as this court did in both McDoughall and
Whitehead, I would also remand for a new sentencing hearing.

   The revocation order on appeal contained a total of four new law

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violations and two additional violations for failure to pay the costs of
supervision and court costs. Consistent with this opinion, the corrected
revocation order will be based exclusively on the two new law violations
occurring on August 29, 2017. The other four violations will be stricken.

   While the majority is correct that the trial court has already revisited
the length of Appellant’s sentence pursuant to his rule 3.800(b) motion,
this reconsideration occurred prior to Appellant’s subsequent motion for
clarification of the violations found by the trial court. In Appellant’s
motion for clarification, he argued that insufficient evidence of the
November 6, 2017 offenses was presented at the revocation hearing, and
he specifically requested the trial court to clarify whether it found him to
have violated probation based solely on the August 29, 2017 offenses or
based on both the August 29, 2017 and November 6, 2017 offenses. In
response to that motion, the trial court issued a corrected order of
revocation of probation and reiterated that it found Appellant to have
violated his probation based on both sets of offenses. Thus, at the time of
reconsideration, the trial court still had the full litany of violations to
consider.

    The allegations of the November 6, 2017 offenses were similar to the
offenses of August 29, 2017, as both involved possession of cocaine, and
this similarity, establishing a pattern of misconduct, may have contributed
to the trial court’s decision to reinstate the maximum sentence of seven
years. When combined with the error of finding that Appellant violated his
probation by failing to pay his costs of supervision and court costs, I would
remand for a new sentencing hearing in addition to requiring the trial court
to enter a corrected revocation order. This court has taken similar action
in the past:

      Although the criminal offenses could independently support
      the judge’s revocation determination, the record provides too
      little guidance for us to determine if the trial judge would have
      imposed the same thirty-six-month incarceration sentence if
      faced with only the two violations rather than four. Thus, we
      reverse the order of revocation and, as a measure of caution,
      remand this case to the trial judge for issuance of a revocation
      order consistent with this decision and for reconsideration of
      defendant’s sentencing.

Wilson v. State, 967 So. 2d 1107, 1108 (Fla. 4th DCA 2007) (emphasis
added). I would exercise the same caution here.

                            *        *         *

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Not final until disposition of timely filed motion for rehearing.




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