                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

MICHAEL JOSEPH NILIO,                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NOS. 1D15-3453, 1D15-3604, 1D15-
                                      3605, 1D15-3606, 1D15-3608, 1D15-3609,
STATE OF FLORIDA,                     1D15-3610, & 1D15-3611
                                      (CONSOLIDATED)
      Appellee.


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Opinion filed February 3, 2017.

An appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

Rick A. Sichta, Susanne K. Sichta, and Joseph Hamrick of The Sichta Firm, LLC,
Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Michael Joseph Nilio challenges his amended judgments and sentences and

the summary denial of his motion for postconviction relief. Nilio asserts that the

trial court failed to resolve his postconviction claim that he attempted to submit

restitution and other costs associated with his probation, but the court refused to
accept payment. However, because Nilio did not raise the issue in his initial brief,

and only cursorily discussed it in his reply brief, he waived the issue. See Land v.

Fla. Dep’t. of Corr., 181 So. 3d 1252, 1254 (Fla. 1st DCA 2015) (noting that an

argument not raised in the initial brief is waived). Thus, we affirm that claim without

further discussion.

      Nilio also argues that the trial court violated due process and the prohibition

against double jeopardy when it amended his judgments and sentences in 2015 to

modify the terms of his probation. The 2012 and 2013 versions of his amended

judgments and sentences provided that probation “will” terminate early upon full

payment of restitution and other monetary obligations.           However, the 2015

amendment provided that probation “may” terminate early upon fulfillment of those

requirements. Based on the language included in the 2012 and 2013 versions of his

judgments and sentences, and because the trial court stated during the initial plea

hearing that Nilio’s probation “may terminate early without further contact with

[the] court,” Nilio argues that termination of his probationary term was automatic,

and the trial court erred in amending the judgments and sentences in 2015. We

disagree. The trial court’s 2015 ruling merely reaffirmed its pre-2012 rulings that

the probationary term would be terminated at the trial court’s discretion, not

automatically upon payment of the probationary obligations.




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       Beginning with the initial plea hearing in 2010, until the trial court amended

the 2015 judgments and sentences, the court, the State, and Nilio’s counsel

repeatedly expressed an understanding that termination of Nilio’s probation would

be at the court’s discretion, not automatic. Reviewing the record as a whole,

including the plea documents, hearing transcripts, filings by Nilio and the State,

correspondence among Nilio, his counsel, and the State, and the trial court’s orders,

we find no indication whatsoever that the trial court or the parties ever intended the

probationary     term    to    automatically    terminate     upon     payment     of

restitution.   See Jackson v. State, 615 So. 2d 850, 850-51 (Fla. 2d DCA 1993)

(finding that court’s ambiguous oral pronouncement could be resolved where its

intent was discernible from the record as a whole).

       Although the 2012 and 2013 versions of the judgments and sentences did

include language that Nilio’s probation “will” terminate early upon satisfaction of

his monetary obligations, the use of that language appears to be a scrivener’s error,

properly corrected by the trial court in its 2015 amended judgments and sentences.

As the court noted in its order directing the 2015 amendments, the record contains

only two hearings addressing the terms of Nilio’s probation: the original 2010 plea

hearing and a July 2011 hearing.        During both, the parties recognized that

termination of Nilio’s probation was discretionary.




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      Accordingly, we conclude that the 2015 amendment to Nilio’s judgments and

sentences was intended to correct a scrivener’s error contained in the 2012 and 2013

versions of the amended judgments and sentences. We thus reject Nilio’s claim that

the 2015 judgments and sentences were entered in violation of his double jeopardy

rights. Further, because the trial court merely corrected a ministerial error, the court

did not violate due process when it issued the amended judgments and sentences

outside Nilio’s presence. See Frost v. State, 769 So. 2d 443, 444 (Fla. 1st DCA

2000).

      For these reasons, we AFFIRM the summary denial of postconviction relief

and the amended judgments and sentences.

LEWIS, ROWE, and KELSEY, JJ., CONCUR.




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