18 30 HERRINGTON
v.
STATE
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Herrington appealed his conviction for domestic battery with probation sentence, challenging the jury instruction given when the jury was deadlocked and contesting probation conditions that were imposed in writing but not orally pronounced at sentencing. The court affirmed the jury instruction and the statutory monthly supervision fee but reversed the requirement that Herrington pay for substance abuse treatment costs due to a double jeopardy violation.
The court affirmed the jury instruction and the monthly supervision cost requirement, which is authorized by statute and need not be orally pronounced. However, the court reversed and remanded the cost-of-substance-abuse condition because the failure to orally pronounce this special condition, when later imposed in a more severe written form, violated Herrington's protection against double jeopardy.
[1] A trial court's failure to orally pronounce special conditions of probation that are not delineated by statute or rule violates a defendant's right to due process.
[2] When a written order of probation imposes special conditions that were not orally pronounced by the court, and these written conditions are more severe than the oral pron…
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Join FLexlaw to unlock all legal intelligence“Conditions of probation that are not delineated by statute or rule are considered special conditions and must be orally pronounced.”
Establishes the legal standard that special probation conditions require oral pronouncement at sentencing
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Join FLexlaw to unlock all legal intelligenceHerrington was convicted of one count of Battery (Domestic) and sentenced to probation with an order withholding adjudication. The court orally ordere…
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401 North Dixie Highway West Palm Beach, FL 33401 [email protected] [email protected]
PER CURIAM.
James M. Herrington appeals the court's order withholding adjudication and sentencing him to a term of probation for one count of Battery (Domestic). On appeal, Appellant challenges the propriety of the court's decision to provide the standardized deadlocked jury instruction after the jury indicated it was at an impasse and requested further instruction. Appellant also challenges his sentence of probation, asserting that the written order of probation violates his right to due process and the protection against double jeopardy because it ordered Appellant to pay $50 a month towards the cost of supervision and to pay for the cost of substance abuse treatment although the court did not orally pronounce these conditions at sentencing. We affirm on the jury instruction issue without further comment. We also affirm the probation order as it pertains to the monthly cost of supervision without further discussion. See § 948.09(1)(b), Fla. Stat. (2018) (providing for the monthly cost of probation supervision in misdemeanor cases); State v. Hart, 668 So. 2d 589, 592 (Fla. 1996) (holding that conditions of probation listed in a statute do not need to be orally pronounced). However, for the reasons set forth below, we are compelled to reverse and remand on the cost-of-substance-abuse condition of probation.
Conditions of probation that are not delineated by statute or rule are considered special conditions and must be orally pronounced. Thompson v. State, 239 So. 3d 1269, 1270 (Fla. 2d DCA 2018). The payment of substance abuse evaluation and treatment expenses by a defendant is a special condition of probation that must be orally pronounced separate and distinct from the requirement that the defendant attend treatment. Id. Here, the court orally ordered Appellant to attend substance abuse evaluation and treatment but, in making this pronouncement, did not specify that Appellant was to bear the cost of such treatment. Nonetheless, the corresponding written probation order provided that Appellant was responsible for the cost of substance abuse evaluation and treatment.
A court's failure to orally pronounce a special condition which it later reduces to writing violates a defendant's right to due process and, if the written order is more severe than the oral pronouncement, also violates the constitutional protection against double jeopardy. Id.; Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003) ("once a sentence has been imposed and the person begins to serve the sentence, the sentence may not be increased without running afoul of double jeopardy"). Due process violations may be remedied via a Motion to Correct Illegal Sentence under Florida Rule of Criminal Procedure 3.800(b). Thompson, 239 So. 3d at 1270. Double jeopardy violations, however, require reversal. Ashley, 850 So. 2d at 1267; Evans v. State, 675 So. 2d 1012, 1014 (Fla. 4th DCA 1996).
In the instant case, Appellant raised the cost of treatment issue in a timely Motion to Correct Sentencing Errors but was denied relief following a hearing. Therefore, because Appellant had the opportunity to be heard on his objection to the payment of the substance abuse program and treatment condition, any due process concerns were remedied. Thompson, 239 So. 3d at 1269-1270. However, as the State properly concedes, by virtue of the payment provision, the written probation order was more severe than the court's oral pronouncement. Therefore, the written probation order violates Appellant's constitutional protection against double jeopardy. Evans, 675 So. 2d at 1014 (holding that court's failure to orally pronounce a special condition which was contained in a written probation order created a double jeopardy violation).
Accordingly we AFFIRM Appellants conviction but REVERSE the payment provision contained in the written probation order and REMAND for the entry of a corrected order. COLBATH, J. MARX, and CARACUZZO, JJ., concur. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
JAMES MARSHALL HERRINGTON, Appellant,
APPELLATE DIVISION (CRIMINAL): AC CASE NO.: 502018AP000030AXXXMB L.T. NO.: 502017MM015123AXXXMB
V.
STATE OF FLORIDA, Appellee.
Opinion/Decision filed: JUL 1 1 2019
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Citator
Authorities Cited
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996)
- Thompson v. State, 239 So. 3d 1269 (Fla. 2d DCA 2018)