JACK TOMLINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the portion of the probation condition prohibiting the appellant from visiting places where intoxicants are unlawfully sold is valid, but the portion prohibiting excessive use of intoxicants is invalid.
Appellant was convicted of sexual offenses and sentenced with probation. He challenged a probation condition that prohibited excessive intoxicant use …
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CAMPBELL, Acting Chief Judge.
Appellant pled no contest and was sentenced for six counts of sexual offenses including lewd and lascivious assault on a child, sexual activity with a child, and sexual battery on a child.
Appellant challenges only the validity of one of the conditions of his probation. Condition six states: “You will not use intoxicants to excess. You will not visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.” Appellant argues this condition is invalid because it is not related to his crimes and relates to conduct which is not criminal. He argues he was not even shown to have a substance abuse problem. Further, the condition was not announced in open court.
We find that , the portion of condition six prohibiting appellant from visiting places where certain substances are unlawfully sold, dispensed or used is valid. This restriction is valid as a more precise defining of conduct prohibited under section 948.03(1)©, Florida Statutes (1991), which states as an accepted condition of probation that an offender may “not associate with persons engaged in criminal activities.” This portion of condition six requires appellant not to associate 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 the opportunity to object to its imposition. Dycus v. State, 629 So. 2d 275 (Fla. 2d DCA 1993).
PARKER and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (57 total)
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Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)…We strike special conditions of probation numbers 4 and 10, and that portion of condition 6 that prohibits the use of alcohol to excess, because they are not statutorily mandated and were not orally pronounced at sentencing. See Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994); Labar v. State, 584 So. 2d 37 (Fla. 2d DCA 1991). Although Mr. Reyes contends that the trial court erred in requiring him to obtain a high school diploma as a special condition of probation, our review of the sentencing transcrip…
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Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)…nts, drugs, or other dangerous substances are unlawfully sold, dispensed or used.” We have recently held that prohibiting a defendant from using intoxicants to excess is a special condition which must be pronounced at sentencing. Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). Thus, this aspect of condition six must be stricken. Moreover, we find nothing in the record to support the imposition of this condition as being reasonably related to Nank’s rehabilitation as required by Rodriquez. We also held…
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Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995)…n 6 that prohibits the excessive use of intoxicants because it was not orally pronounced at sentencing. We affirm the balance of condition 6 as a precise definition of a general prohibition that need not be orally pronounced. See Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). Affirmed in part, portions of probation conditions stricken, and question certified. DANAHY, A.C.J., and FULMER, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)
- Dycus v. State, 629 So. 2d 275 (Fla. 2d DCA 1993)