District Court of Appeal of Florida, Fifth District.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
No appearance for appellee.
GRIFFIN, Judge.
This is an Anders[1] case in which appellant's counsel has raised the issue of the habitual offender sentence while recognizing this court's opinion in Oglesby v. State, 627 So. 2d 585 (Fla. 5th DCA 1993), from which we have now receded in Thompson v. State, 638 So. 2d 116 (Fla. 5th DCA 1994). Thompson controls this case and we remand for further proceedings consistent with Thompson.
We also agree there is a discrepancy between the court's oral pronouncement concerning community control condition 31 that appellant may meet his monetary conditions of community control by conversion to community service hours if appellant chooses. The written order deviates from the oral pronouncement and should be made to conform.
JUDGMENT AFFIRMED; SENTENCE VACATED; AND REMANDED.
W. SHARP, J., concurs.
GOSHORN, J., dissents, with opinion.
GOSHORN, Judge, dissenting.
I respectfully dissent for the reasons set forth in my opinion in Oglesby v. State, 627 So. 2d 585 (Fla. 5th DCA 1993) review denied, No. 82,987, 637 So. 2d 236 (Fla. Mar. 11, 1994) and my dissent in Thompson v. State, 638 So. 2d 116 (Fla. 5th DCA 1994).
[1] Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
