ANDRE L. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Williams pleaded guilty to drug possession charges but appealed the denial of his motion to dismiss the possession of cocaine charge. The appellate court vacated the possession conviction, struck certain probation conditions and imposed court costs without proper hearing, but affirmed the probation condition restricting visits to places where drugs are unlawfully sold.
The court vacated the possession of cocaine conviction, holding the trial court should have granted the motion to dismiss under controlling precedent. The court struck the imposition of court costs and attorney's fees for lack of notice and hearing, and struck special condition (13) regarding cohabitation as unconstitutional, but affirmed special condition (16) regarding prohibited locations as a lawful probation restriction.
[1] A conviction for possession of cocaine may be dismissed if the evidence shows the defendant did not possess the contraband.
[2] Imposition of court costs and attorney's fees requires prior notice and a hearing.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We agree with appellant that the trial court should have granted his motion to dismiss the charge of possession of cocaine. Accordingly, this conviction should be vacated.”
Establishes that the court granted Williams's appeal on the primary issue, vacating the possession conviction based on controlling precedent.
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded guilty to purchasing and possession of cocaine while reserving his right to appeal the denial of his oral motion to dismiss the posse…
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PER CURIAM.
Appellant pleaded guilty to purchasing and possession of cocaine, reserving his right to appeal the denial of his oral motion to dismiss the possession of cocaine charge on the basis of Carawan v. State, 515 So. 2d 161 (Fla.1987), and Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988), decision approved sub nom., State v. Smith, 547 So. 2d 613 (Fla.1989). See also Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989). The trial court withheld adjudication on the charges, placed appellant on two concurrent one-year terms of probation, and imposed court costs and attorney’s fees. After the sentencing hearing and without giving appellant an opportunity to object, the trial court imposed written special conditions of probation, which include the following:
(13) Must not live with member of opposite sex that is not a relative.
(16) Will not ... visit places where intoxicants and drugs are unlawfully sold, dispensed or used.
We agree with appellant that the trial court should have granted his motion to dismiss the charge of possession of cocaine. Accordingly, this conviction should be vacated. See Wagner v. State, 553 So. 2d 801 (Fla. 2d DCA 1989); Gordon.
We strike the imposition of court costs and attorney’s fees because they were imposed without notice and a hearing. Wood v. State, 544 So. 2d 1004, 1006 (Fla.1989); Jenkins v. State, 444 So. 2d 947 (Fla.1984) We reject the state’s argument that appellant waived such notice and hearing. The boiler plate “waiver” in an affidavit of insolvency has recently been held invalid. Bull v. State, 548 So. 2d 1103 (Fla.1989). The state may seek reimposition of costs after proper notice and hearing.
We further strike special condition (13) of appellant’s probation, Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984); but affirm special condition (16). The fourth district, in 1977, held the same condition of probation as in special condition (16) in this case not to be unreasonable or unlawful, where the defendant pleaded guilty to charges of obtaining property by worthless checks. Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977). We recognize that circumstances have changed from 1977 to the present and that many drug offenders live in so-called drug-infested neighborhoods where drugs could be illegally sold in front of their homes, which could make it virtually impossible for a probationer to comply with this condition. We also note that a violation of this condition would have to be proven willful before appellant’s probation could be revoked on this basis.
Affirmed in part and reversed in part.
FRANK, A.C.J., and THREADGILL and PATTERSON, JJ., concur.
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Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)…s unrelated to the offense for which Alvarez was convicted. By contrast, restrictions upon this sort of conduct may be highly relevant in a case where the crime itself involves the use or distribution of unlawful drugs. See, e.g., Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990). Alvarez, therefore, is of no avail to Gregory- In Huff the probationer was directed not to reside in close proximity to “a known drug area,” as defined by his probation officer. Such a condition suffers from numerous problems, i…
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Daniels v. State, 583 So. 2d 423 (Fla. 2d DCA 1991)…he imposition of costs, but reverse a portion of the conditions of his probation. The conditions relating to intoxicants and drugs are not reasonably related to the offense. Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979). Cf. Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990) (conditions relating to this type of conduct are proper in a drug-related case). The record does not indicate that Mr. Daniels had a problem with substance abuse. Therefore, condition 6, prohibiting Mr. Daniels from using intoxica…
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Navarrion Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997)…favorably to the accused. See § 775.021(1), Fla.Stat. (1995). Additionally, any ambiguity in a condition imposed at sentencing will affect the state’s ability at a later date to establish a willful violation of that condition. See Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990). This statutory condition clearly provides adequate warning to probationers to avoid illegal drugs.5 It warns them not to possess narcotics or prescription drags without a doctor’s prescription. We doubt that a typical reader of…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988)
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977)
- Artis Rynard Lewis v. State, 545 So. 2d 427 (Fla. 2d DCA 1989)
- Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984)
- Kennedy v. State, 553 So. 2d 801 (Fla. 2d DCA 1989)