RODNEY SUMTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1990-11-21
No. 89-2201
BARFIELD, J., concurs., BOOTH, J., concurs in part with written opinion.
570 So. 2d 1039 Florida District Court of Appeal, First District (1990) Caution
Cited by 18 cases

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Synopsis

Rodney Sumter appealed his probationary split sentence, challenging it on double jeopardy, probation condition, sentencing order conformity, and cost imposition grounds. The Florida First District Court of Appeal affirmed the validity of the split sentence and the probation condition (due to lack of preservation), but reversed and remanded on the discrepancy between oral pronouncement and written order and the imposition of costs without prior notice.


Holding

The probationary split sentence is legal and does not violate double jeopardy. The probation condition was not properly preserved for appeal due to lack of objection. The trial court erred by including conditions in the written order that were not mentioned in the oral pronouncement, requiring reversal and remand for correction. The trial court also erred by imposing costs without prior notice and opportunity to be heard, requiring reversal and remand.


Headnotes

[1] A probationary split sentence is legal unless the legislature has not explicitly authorized that disposition in the sentencing alternatives.

[2] Failure to object to a condition of probation constitutes acceptance of that condition.

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Key Quotes

“It is axiomatic that a trial court's oral pronouncement controls over its written order, and the inclusion of special conditions of probation in a written order that were not orally pronounced at the sentencing hearing mandates reversal and remand for correction of the written order to conform to the oral pronouncement.”

Establishes the controlling legal principle that the oral pronouncement takes precedence over the written order, requiring reversal when conditions appear in writing but not in oral pronouncement.

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Facts & Procedural History

Rodney Sumter received a probationary split sentence. The written probation order included conditions requiring him to pay $1.00 per month to First St…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Appellant, Rodney Sumter, contends on appeal that the probationary split sentence imposed upon him violates double jeopardy, that a condition of his probation prohibiting him from being in certain high-crime areas is invalid, that the written order of probation does not conform to the oral pronouncement, and that the trial court erred by imposing costs without adequate prior notice. We affirm as to the first two issues and reverse and remand on the last two.

The probationary split sentence imposed upon appellant is legal. Poore v. State, 531 So. 2d 161 (Fla.1988); Glass v. State, 556 So. 2d 465 (Fla. 1st DCA 1990), review granted, No. 75,600 (Fla. Feb. 27, 1990) (oral argument scheduled Dec. 6, 1990); Alexander v. State, 568 So. 2d 1341 (Fla. 1st DCA 1990). As in Glass and Alexander, however, we certify the following question to the supreme court as one of great public importance:

DOES A DOUBLE JEOPARDY VIOLATION RESULT FROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE HAS NOT EXPLICITLY AUTHO RIZED THAT DISPOSITION IN THE SENTENCING ALTERNATIVES OF SECTION 921.187, FLORIDA STATUTES?

Appellant’s complaint regarding the probation condition was not preserved for appellate review because no objection was lodged thereto. The failure to object to a condition of probation constitutes acceptance of that condition. Rowland v. State, 548 So. 2d 812, 814 (Fla. 1st DCA 1989). See also Larson v. State, 553 So. 2d 226, 228 (Fla. 1st DCA 1989), petition for review filed, No. 75,085 (Fla. Nov. 22,1989) (defendant could not appeal condition of probation that he stay out of Tallahassee for five years, because he neither objected nor filed a motion to strike or to correct).

Turning next to the discrepancy between the oral sentencing pronouncement and the written probation order, we agree with appellant that the sentence must be reversed and remanded. The written order provides, in pertinent part, that appellant pay $1.00 per month to First Step, Inc. of Bay County; that he attend drug evaluation and counseling; and that he submit to blood and breathalyzer examinations. Although the trial judge at sentencing referred to this case as a “drug package,” he made no mention of the above conditions when he pronounced the terms of appellant’s probation. It is axiomatic that a trial court’s oral pronouncement controls over its written order, and the inclusion of special conditions of probation in a written order that were not orally pronounced at the sentencing hearing mandates reversal and remand for correction of the written order to conform to the oral pronouncement. Rowland, 548 So. 2d at 814. See also Smith v. State, 558 So. 2d 534 (Fla. 1st DCA 1990); Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989).

We also find reversal and remand necessary on the cost issue. Before costs under Sections 960.20, 943.25, and 27.3455, Florida Statutes, can be imposed, prior notice and opportunity to be heard are required. Jenkins v. State, 444 So. 2d 947 (Fla.1984); Mays v. State, 519 So. 2d 618 (Fla.1988); Shipley v. State, 528 So. 2d 902 (Fla. 1988); Wood v. State, 544 So. 2d 1004 (Fla.1989). In the instant case, it is undisputed that appellant was not given prior notice and opportunity to be heard before costs were imposed pursuant to section 27.-3455.

Appellee’s reliance on Bull v. State, 548 So. 2d 1103 (Fla.1989), for a contrary result is misplaced. Bull involved imposition of an attorney’s lien under Section 27.56, Florida Statutes. That statute, unlike sections 960.20, 943.25, and 27.3455, contains a notice provision, which the Bull court concluded was satisfied. Jenkins was not overruled in Bull. In fact, the court in Bull specifically stated it saw no conflict with Jenkins. Bull, 548 So. 2d at 1105. Because Jenkins and its progeny, not Bull, control in the instant case, appellant was entitled to prior notice and opportunity to be heard before costs were imposed.1 Appellant’s sentence is therefore reversed without prejudice for the state to tax those costs in accordance with due process requirements.

AFFIRMED in part, and REVERSED and REMANDED in part.

BARFIELD, J., concurs.

BOOTH, J., concurs in part with written opinion.

. To the extent that Rhodes v. State, 566 So. 2d 593 (Fla. 1st DCA 1990), may be read as applying the lesser Bull notice requirements to costs imposed under sections 960.20, 943.25, and 27.-3455, we must disagree therewith.

Concurrence
BOOTH, Judge,

BOOTH, Judge,

concurring in part.

I would affirm on all issues except Issue III. As to that issue, I agree with the majority that remand is required for resolution of the discrepancy between the court’s oral and written pronouncements.


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Citator

Cited By

  • Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994)
    …en order entered a week after the oral pronouncement made no mention of monthly installments, however, and specified a different total: $41,153.96. The discrepancy between written order and oral pronouncement requires reversal. See Sumter v. State, 570 So. 2d 1039, 1041 (Fla. 1st DCA 1990), review dismissed, 583 So. 2d 1037 (Fla.1991). As the learned trial judge recognized, the judicial duty to determine the defendant’s ability to pay restitution and to set the amount of monthly installment payments may not b…
  • Shaddix v. State, 599 So. 2d 269 (Fla. 1st DCA 1992)
    …the conditions as pronounced at sentencing. We do likewise here. See Johnson v. State, 598 So. 2d 282 (Fla. 1st DCA 1992); Flowers v. State, 595 So. 2d 263 (Fla. 1st DCA 1992); McCollun v. State, 586 So. 2d 490 (Fla. 1st DCA 1991); Sumter v. State, 570 So. 2d 1039 (Fla. 1st DCA 1990). Several other requirements pertaining to alcohol or substance abuse screening, counseling and treatment (Conditions 13 and 14) and to submission to breathalyzer, blood tests and/or urinalysis examinations (Condition 15) were or…
  • Coupe v. State, 591 So. 2d 304 (Fla. 1st DCA 1991)
    …en probation order imposing such condition varied from the trial judge's oral sentencing pronouncement which did not impose such a fee. The trial court is instructed to correct the written order to conform to the oral pronouncement. Sumter v. State, 570 So. 2d 1039 (Fla. 1st DCA 1990). AFFIRMED in part, and REVERSED and REMANDED in part. SHIVERS, ZEHMER and MINER, JJ„ concur.…

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