ROGER LEE CARTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Carter appealed sentences imposed for probation violations in three cases. The appellate court reversed and remanded, finding that the trial court failed to provide proper sentencing credits in one case, incorrectly designated a felony degree in another case, and imposed probation conditions that were not orally pronounced at sentencing.
The trial court committed reversible error by failing to credit previously served probationary time against the extended probation in case 88-8984, by designating the grand theft conviction as a third-degree felony when it is a second-degree felony in case 88-6466, and by imposing probation conditions in writing without orally pronouncing them at sentencing.
[1] A trial court must strike a condition of probation from a written order if the condition was not orally pronounced in open court during sentencing.
[2] A trial court must correct a judgment to accurately reflect the degree of felony for which a defendant was adjudicated guilty.
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Join FLexlaw to unlock all legal intelligence“the record reflects that Carter is entitled to credit for the probationary time he served previously when probation was first imposed for this conviction”
establishes the rule that probationers must receive credit for time previously served on probation against extended probation sentences
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Join FLexlaw to unlock all legal intelligenceCarter had been adjudicated guilty of auto theft (third-degree felony) in case 88-8984 and grand theft in the second degree in case 88-6466. He violat…
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PARKER, Judge.
Rogér Carter appeals the sentences imposed in three separate cases in which Carter admitted violating his probation. We reverse, concluding that the trial court committed certain errors during sentencing, and remand to the trial court for corrections.
In circuit court case number 88-8984, the trial court had adjudicated Carter guilty of auto theft, which is a third-degree felony. Following a second violation of probation, the trial court imposed five years’ probation, the maximum time permitted for a third-degree felony. However, the record reflects that Carter is entitled to credit for the probationary time he served previously when probation was first imposed for this conviction. We reverse this sentence and remand it to the trial court to strike from Carter’s extended probationary period any amount of probation in excess of the statutory maximum. See Davis v. State, 604 So. 2d 844 (Fla. 2d DCA 1992); Servis v. State, 588 So. 2d 290 (Fla. 2d DCA 1991).
Carter argues that this result also should occur in circuit court case number 88-6466. We disagree. In case number 88-6466, the state charged and the trial court adjudicated Carter guilty of grand theft in the second degree, a violation of section 812.-014(2)(b), Florida Statutes (1987). Although the trial court designated this offense in the initial judgment as a third- degree felony, it is a second-degree felony. We, therefore, direct the trial court to correct the judgment to reflect that the defendant was adjudicated guilty of a second-degree felony in case number 88-6466.
The written order of probation which applies to all three cases (88-6466, 88-8984, and 89-4362) contains a handwritten notation, “Same Terms & Conditions.” Because the trial court did not pronounce orally this condition of probation at sentencing, we strike this phrase from Carter’s written order of probation. See Williams v. State, 601 So. 2d 635 (Fla. 2d DCA 1992); Williams v. State, 542 So. 2d 479 (Fla.2d DCA 1989).
Further, the order of probation contains condition six, entered in writing by the trial court in all three cases, which states “[y]ou will not use intoxicants to excess; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.” This condition must be stricken because the trial court did not pronounce it in open court. See Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992).
Reversed and remanded with directions to resentence Carter consistent with this opinion.
CAMPBELL, A.C.J., and BLUE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993)…underlying offense. Blackburn v. State, 468 So. 2d 517, 518 (Fla. 1st DCA 1985); Duchesne v. State, 616 So. 2d 172 (Fla.2d DCA 1993); Teasley v. State, 610 So. 2d 26, 27 (Fla. 2d DCA 1992), review denied, 618 So. 2d 1370 (Fla.1993); Carter v. State, 606 So. 2d 680 (Fla. 2d DCA 1992); Ogden v. State, 605 So. 2d 155, 158 (Fla. 5th DCA 1992). In Ogden, the court explained that probation could not be extended beyond the statutory maximum for the offense, because to rule otherwise would mean that probation or comm…
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Bruce v. Crawford, 616 So. 2d 1158 (Fla. 2d DCA 1993)…lawfully sold, dispensed, or used; and special condition (10), regarding drug evaluation and treatment within thirty days of release from prison, are improper because the conditions were were not pronounced orally at sentencing. See Carter v. State, 606 So. 2d 680, 681 (Fla.2d DCA 1992). We, accordingly, strike conditions (4) and (6) and special condition (10) without prejudice for the trial court to reimpose conditions (6) and (10) upon oral pronouncement. Crawford’s challenge to condition (7), regarding wo…
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Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994)…firearm. Mercer v. State, 604 So. 2d 843 (Fla. 2d DCA 1992). Special probation condition # 6, relating to the defendant’s use of intoxicants, must also be stricken because the trial court did not orally pronounce it in open court. Carter v. State, 606 So. 2d 680 (Fla. 2d DCA 1992). Reversed and remanded with directions to strike conditions # 4 and # 6 from the probation order. HALL, A.C.J., and BLUE, J., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Servis v. State, 588 So. 2d 290 (Fla. 2d DCA 1991)
- Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989)
- Oden v. State, 542 So. 2d 479 (Fla. 2d DCA 1989)
- Davis v. State, 604 So. 2d 844 (Fla. 2d DCA 1992)
- Williams v. State, 601 So. 2d 635 (Fla. 2d DCA 1992)