KENNETH RICHARD CUMBIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this third appeal of Kenneth Cumbie's attempted capital sexual battery conviction, the court affirms his sentence but requires correction of technical errors: removal of a special probation condition not orally pronounced and correction of scrivener's errors in the judgment identifying the offense statute and degree of the crime.
Special conditions of probation not pronounced orally at sentencing cannot be included in the written order, but standard conditions listed in Florida Statutes may be included even if not orally pronounced. The phrase 'at your own expense' constitutes a special condition and must be deleted. Scrivener's errors in identifying the offense statute and degree of crime must be corrected on remand.
[1] A special condition of probation not pronounced orally at the sentencing hearing cannot be included in the written order.
[2] Standard conditions of probation may be included in the written order even if not pronounced orally at the sentencing hearing.
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Join FLexlaw to unlock all legal intelligence“A 'special condition' of probation not pronounced orally at the sentencing hearing cannot be included in the written order.”
Establishes the rule that special probation conditions must be orally pronounced to be valid in the written order
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Join FLexlaw to unlock all legal intelligenceCumbie was convicted of attempted capital sexual battery and sentenced to twelve years in prison followed by eighteen years' probation. The written pr…
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PER CURIAM.
This is the third time that this criminal case has been before us for review. In Cumbie v. State, 539 So. 2d 538 (Fla. 1st DCA 1989), we affirmed appellant’s conviction of attempted capital sexual battery, but vacated the sentence and remanded for resentencing. In Cumbie v. State, 562 So. 2d 845 (Fla. 1st DCA 1990), we affirmed the departure sentence imposed on remand, but certified as a question of great public importance whether the reason used by the trial court to justify the departure sentence was legally sufficient. The Supreme Court answered the certified question in the negative, and again vacated appellant’s sentence and remanded for resentencing. Cumbie v. State, 574 So. 2d 1074 (Fla.1991).
On this appeal from appellant’s latest resentencing, appellant’s appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which she states that, other than minor sentencing errors, she is unable to make a good-faith argument that reversible error occurred in the trial court. (Although appellant was notified of his right to file a brief in proper person, he has not done so.) Our indepen dent review of the record convinces us that counsel is correct.
Appellant was sentenced to twelve years in prison, to be followed by eighteen years’ probation. Condition (12) of the written probation order states: “You will submit to urinalysis/breathalyzer/blood tests at your own expense at any time requested by your Probation Officer.” This condition was not pronounced orally at the sentencing hearing. A “special condition” of probation not pronounced orally at the sentencing hearing cannot be included in the written order. See, e.g., McCollun v. State, 586 So. 2d 490 (Fla. 1st DCA 1991); Rowland v. State, 548 So. 2d 812 (Fla. 1st DCA 1989). However, “standard conditions” of probation (i.e., those listed in Section 948.03(1), Florida Statutes) may be included in the written order even if they are not pronounced orally at the sentencing hearing. See, e.g., Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992); Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA 1991). With the exception of the words “at your own expense” (which we conclude amount to a special condition of probation), Condition (12) of the written probation order is consistent with the standard condition of probation set forth as Section 948.03(l)(j)l., Florida Statutes (Supp.1990). Therefore, we reverse the order of probation and remand with directions that the words “at your own expense” be deleted from Condition (12).
We note also that the judgment, while correctly identifying the “crime” of which appellant was convicted as “attempted sexual battery,” includes under “offense statute number(s)” only Section 794.011(2), Florida Statutes (1987) (capital sexual battery), omitting reference to the appropriate portion of the attempt statute, Section 777.-04(4)(a). In addition, the Judgment incorrectly identifies the “degree of crime” as capital; attempted capital sexual battery is a first-degree felony. Accordingly, on remand the trial court shall correct these scrivener’s errors as well. In all other respects, the judgment and sentence are affirmed.
SHIVERS, WOLF and WEBSTER, JJ., concur.
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Cited By (24 total)
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Justice v. State, 674 So. 2d 123 (Fla. 1996)…OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur. WELLS, J., concurs in result only. . First District: see, e.g., Jamail v. State, 637 So. 2d 362 (Fla. 1st DCA 1994); Christobal v. State, 598 So. 2d 325 (Fla. 1st DCA 1992); Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992); Rowland v. State, 548 So. 2d 812 (Fla. 1st DCA 1989). Second District: see, e.g., Williams v. State, 653 So. 2d 407 (Fla. 2d DCA 1995), quashed, 667 So. 2d 191 (Fla.1996); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994); Peters…
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Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)…spawn unnecessary appellate review. It is well settled in this state that a condition of probation which is statutorily authorized3 may be included in a written order of probation even if not orally pronounced at sentencing. E.g., Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992). The legal underpinning for this rationale is that the statute provides “constructive notice of the condition which together with the opportunity to be heard and raise any objections at a sentencing hearing satisfies the requirem…1 / 2
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Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995)…tes (1992), authorizes the imposition of the condition to submit for random drug testing; however, the additional requirement that the testing be conducted at “the defendant’s own expense” is not authorized by section 948.03(1)®. In Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992), the First District concluded that the additional requirement that the defendant submit to random testing at “his own expense” renders the condition a special condition which must be orally pronounced at sentencing. We, therefore…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Rowland v. State, 548 So. 2d 812 (Fla. 1st DCA 1989)
- Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA 1991)
- McCOLLUN v. State, 586 So. 2d 490 (Fla. 1st DCA 1991)
- Cumbie v. State, 574 So. 2d 1074 (Fla. 1991)
- Cumbie v. State, 562 So. 2d 845 (Fla. 1st DCA 1990)
- Cumbie v. State, 539 So. 2d 538 (Fla. 1st DCA 1989)