Wright v. State , 687 So. 2d 291 ( 1997 )

687 So. 2d 291 (1997)

Eddie Holly WRIGHT, Appellant,
v.
STATE of Florida, Appellee.

No. 96-1747.

District Court of Appeal of Florida, Fifth District.

January 17, 1997.

James B. Gibson, Public Defender, and Andrea J. Surette, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

ANTOON, Judge.

The defendant, Eddie Holly Wright, appeals his judgment and sentence which were entered after the trial court revoked his probation. We affirm because, contrary to the defendant's claim, the record evidence demonstrates that the defendant violated his probation by failing to file his monthly probation reports as instructed by the court.

We note that the affidavit alleging that the defendant had violated his probation charged that, in addition to failing to file his monthly reports, the defendant failed to undergo DNA testing as instructed by his probation officer. The affidavit described the failure to undergo the DNA test as a violation of condition 8 of the probation order which instructed the defendant to follow the probation officer's lawful instructions. Importantly, the defendant's original probation order did not require the defendant to submit to DNA testing. As a result, at the violation hearing the trial court properly concluded that this alleged violation could not be considered. However, the written revocation order conflicts with this ruling because the order states that the defendant's probation was revoked in part because he failed to submit to DNA testing. Based upon these facts, we strike the reference in the revocation order to the defendant's violation of condition 8.

AFFIRMED.

DAUKSCH and GRIFFIN, JJ., concur.