NICHOLAS G. GREGORY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nicholas Gregory appealed his conviction and split sentence for sale and possession of cannabis, challenging two probation conditions as vague and not announced in open court. The court affirmed the conviction but partially reversed, striking one condition for failure to announce it in open court while upholding the other as sufficiently definite and related to the offense.
The first condition must be stricken because it was not announced in open court, despite being sufficiently definite to survive a vagueness challenge. The second condition should be upheld because it sufficiently incorporates standard statutory conditions, includes a qualifying clause limiting it to Gregory's ability, and was otherwise lawful, though it should have been announced in open court.
[1] A probation condition prohibiting the use of intoxicants to excess and visiting places where intoxicants are unlawfully sold is sufficiently definite to inform persons of…
[2] A special condition of probation must be announced in open court.
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Join FLexlaw to unlock all legal intelligence“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”
Establishes that probation conditions limiting drug-related conduct are appropriate for drug offenses, distinguishing the case from Alvarez where a condition unrelated to the offense was struck.
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Join FLexlaw to unlock all legal intelligenceGregory was convicted of sale and possession of cannabis and received a split sentence with probation conditions. Two special conditions were imposed:…
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PER CURIAM.
Nicholas Gregory appeals from his conviction and split sentence for sale and possession of cannabis. The sole issue raised in this appeal is whether two conditions of probation must be stricken.
The first condition reads as follows: “You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.” Gregory argues that this special condition is too vague “to apprise ... of the places and substances he is supposed to avoid.” Moreover, the condition was not announced orally at the sentencing hearing, thus depriving Gregory of the opportunity to raise any objection he might have had.
Regarding the claim of vagueness, Gregory relies principally upon Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992), and Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989). One of the conditions stricken in Alvarez involved “consumption of alcohol.” Citing Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990), the court found this condition was 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, including the impermissible delegation of judicial authority to the officer, the all-encompassing scope of the term, and the unfortunate fact “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.” Williams, 556 So. 2d at 481-82. None of these problems resurfaces in the present case, in which the wording of the condition is far more definite, sufficient to inform persons of reasonable intelligence what conduct is prohibited. Baker v. State, 609 So. 2d 167 (Fla. 2d DCA 1992). Of course, “a violation of this condition would have to be proven willful before appellant’s probation could be revoked on that basis.” Williams, 556 So. 2d at 482.
The law does require, however, that special conditions must be announced in open court. For this reason we must remand the order of probation to the trial court with instructions to strike this condition. Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992).
The second condition provides: “You will work diligently at a lawful occupation and support any dependents to the best of your ability, as directed by your officer.” Again two objections are raised, beginning with Gregory’s repeated complaint that the condition was not announced in open court. Beyond that, he depicts the condition as “sufficiently egregious to be the equivalent of fundamental error,” because it risks penalizing him for circumstances beyond his control, such as a weak economy. Walls v. State, 596 So. 2d 811, 812 (Fla. 4th DCA 1992), quoting Larson v. State, 572 So. 2d 1368, 1370-71 (Fla.1991).
As in our comparison with Huff, we find that the objectionable language in Walls was measurably different than that used in the present case. The precise wording of the stricken condition was “full-time employment of at least thirty-five hours per week.” Instead, “[t]he court should have ... ordered Walls to maintain or actively seek gainful employment.” 596 So. 2d at 812. The caveat in the present case, that Gregory work “to the best of your ability,” distinguishes it from Walls and avoids the potential for penalizing Gregory for unemployment that he did not seek or cause. Moreover, insofar as this “special” condition merely combines the two standard conditions set forth in sections 948.03(l)(c) and (f), Florida Statutes (1991), there is no due process problem. Accordingly, we decline to strike this condition.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., DANAHY and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)…nal activities.” 645 So. 2d at 1 (emphasis in original). Thus, we concluded that such a restriction was “a general condition that is valid and need not have been pronounced in open court, an argument that was not presented to us in Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993).” 645 So. 2d at 1. Accordingly, as in Tomlinson, we approve this aspect of condition six. Condition thirteen ordered Nank to submit, at his own expense, to a drug and alcohol evaluation. He was also ordered to pay for any needed…
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Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)…with persons engaged in the illegal activity of unlawfully selling or using certain substances. This is a general condition that is valid and need not have been pronounced in open court, an argument that was not presented to us in Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993). The remaining portion of condition six prohibits appellant from using intoxicants to excess. This special condition must be stricken since the trial court failed to announce it in open court, preventing appellant from having th…
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Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)…rial court’s order states that “You will work diligently at a lawful occupation and support any dependents to the best of your ability as directed by your Probation Officer.” This condition was specifically approved by the court in Gregory v. State, 616 So. 2d 174 [*1122] (Fla.2d DCA 1993), which distinguished the condition in Walls and Evans bn the basis that the caveat that the defendant work to the best of his ability avoided the potential for penalizing the defendant for unemployment which he. did not see…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Walls v. State, 596 So. 2d 811 (Fla. 4th DCA 1992)
- Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990)
- Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989)
- Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992)
- Kuldip Singh Mundi v. State, 556 So. 2d 480 (Fla. 3d DCA 1990)
- Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990)
- Baker v. State, 609 So. 2d 167 (Fla. 2d DCA 1992)