ERIC ALLEN PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Peterson appealed his habitualized probation sentence for possession of a firearm by a convicted felon, challenging both unanounced alcohol-related probation conditions and the denial of prior probation credit. The court upheld Peterson's challenge to the alcohol conditions but rejected the probation credit claim, reversing and remanding for removal of the invalid conditions.
The court held that the unanounced alcohol-related probation conditions are invalid because they are not statutorily authorized and therefore must be orally announced at sentencing to be valid. The court rejected Peterson's second issue regarding probation credit, finding it inapplicable because the probation was part of an initial sentencing rather than a reimposition of probation upon revocation.
[1] Conditions of probation that are not statutorily authorized must be orally pronounced at sentencing to be valid.
[2] Alcohol-related conditions of probation that were not orally pronounced at sentencing must be stricken from the written order.
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Join FLexlaw to unlock all legal intelligence“Because these alcohol-related conditions are not statutorily authorized, they must be orally announced at sentencing in order to be valid.”
Establishes the core holding that non-statutory probation conditions require oral pronouncement at sentencing
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Join FLexlaw to unlock all legal intelligencePeterson was convicted of possession of a firearm by a convicted felon in Circuit Court Case No. 92-3083. At sentencing, the trial court orally announ…
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DANAHY, Acting Chief Judge.
The appellant brings for our review the habitualized probation he received for a conviction of possession of a firearm by a convicted felon in Circuit Court Case No. 92-3083. He claims (1) that alcohol-related conditions of probation were imposed in the written order but were not pronounced at sentencing, and (2) that he did not receive proper credit for time previously spent on probation.
As to the first issue, the appellant is correct. The sentencing court at the hearing announced as conditions of probation that the appellant enter and successfully complete a long-term residential drug treatment program, and that all drug-related conditions would apply. The written order imposes as a condition of probation that the appellant not possess or use alcohol, nor visit places where alcohol is sold, dispensed, or used, nor associate with persons who use alcohol. Because these alcohol-related conditions are not statutorily authorized, they must be orally announced at sentencing in order to be valid. Turchario v. State, 616 So. 2d 539 (Fla. 2d DCA 1993); Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992); see generally Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994).
Since these conditions were not orally pronounced at the appellant’s sentencing they should be stricken from the order.
We note, in accord with Turchario, that had the trial court imposed “the same conditions as before,” and had the appellant’s probation conditions in his other eases1 contained alcohol-related conditions, he would be on notice of those previously imposed conditions and, if they were related to his rehabilitation, they would have been valid conditions to this probation. Id. at 540.
The appellant’s second issue has no merit since the probation he received in this case was part of an initial sentencing and not a reimposition of probation upon revocation. Therefore, Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993), approved, 642 So. 2d 742 (Fla.1994), has no application to the case before us.
We reverse the sentencing order and remand for striking of the alcohol-related conditions of probation.
ALTENBERND and FULMER, JJ., concur. . At the same sentencing hearing the court imposed probation in several cases where the appellant's probation was revoked. These were Circuit Court Cases Nos. 91-0795, 91-0427, 90-5332, and 90-5422. These revocation cases are not before us in this appeal although they were disposed of at the same time as the case before us.
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Justice v. State, 674 So. 2d 123 (Fla. 1996)…A 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); Peterson v. State, 645 So. 2d 84 (Fla. 2d DCA 1994); Turchario v. State, 616 So. 2d 539 (Fla. 2d DCA 1993); Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992). Fourth District: see, e.g., Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA), review dismissed, 666 So. 2d 145 (Fla.1995)…
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Justice v. State, 658 So. 2d 1028 (Fla. 5th DCA 1995)…t is and has been for several years. A few recent examples are: Willis v. State, 640 So. 2d 1188 (Fla. 5th DCA 1994); Sweet v. State, 644 So. 2d 176 (Fla. 5th DCA 1994); Jamail v. State, 637 So. 2d 362 [*1032] (Fla. 1st DCA 1994); Peterson v. State, 645 So. 2d 84 (Fla. 2d DCA 1994); Chicone v. State, 644 So. 2d 532 (Fla. 5th DCA 1994), review denied, 651 So. 2d 1192 (Fla.1995); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994). Lots of older examples are interspersed with the other "oral over written” cases a…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)
- Porter v. State, 609 So. 2d 640 (Fla. 1st DCA 1992)
- Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992)
- Turchario v. State, 616 So. 2d 539 (Fla. 2d DCA 1993)