WILLIAM E. JENNINGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Jennings appealed three conditions of his probation, arguing they were special conditions that must be orally pronounced in open court to be valid. The Florida District Court of Appeal partially agreed, striking certain portions of the conditions while upholding others as valid general conditions that did not require oral pronouncement.
The court held that: (1) the firearm prohibition itself is valid as a general condition, but the consent language must be stricken as it improperly implies a felon could possess firearms with consent; (2) the prohibition on visiting places where intoxicants are unlawfully sold is a valid general condition, but the excessive use prohibition must be stricken if not orally pronounced; and (3) the work condition is a valid general condition under statute that need not be orally pronounced.
[1] A special condition of probation that improperly implies a felon could possess a firearm with the consent of a probation officer is invalid as to the consent provision.
[2] A condition of probation prohibiting the possession, carrying, or ownership of a firearm is a valid general condition that need not be orally pronounced.
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Join FLexlaw to unlock all legal intelligence“We agree as to certain of the conditions.”
The court partially agrees with appellant's challenge to probation conditions.
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Join FLexlaw to unlock all legal intelligenceJennings was placed on probation with conditions including: (1) a prohibition on possessing firearms without probation officer consent; (2) a prohibit…
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CAMPBELL, Judge.
Appellant challenges three conditions of his probation on the grounds that they are special conditions of probation and, as such, must be pronounced in open court in order to be valid. He argues that the court’s failure to do so renders the conditions invalid. We agree as to certain of the conditions.
Appellant challenges the following three conditions of probation:
4. You will neither possess, carry, or own any weapons or firearms without first securing the consent of your probation officer. 6. 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.
7. You will work diligently at a lawful occupation and support any dependents to the best of your ability as directed by your probation officer. We consider first the firearm possession prohibition contained in condition four and conclude that since this special condition improperly implies that a felon could possess a firearm with the consent of his probation officer, that portion of the condition referring to the consent of the probation officer must be stricken. See Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994). The remainder of the condition is a valid general condition that need not be orally pronounced. See § 790.23, Fla.Stat. (1993).
We next consider condition six, concerning the use of intoxicants. In Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994), this court held that that portion of condition six that prohibits a probationer from visiting places where intoxicants are illegally sold is valid as a more precise definition of a general prohibition and, as such, need not be orally pronounced. However, we further held that that portion of condition six prohibiting the excessive use of those substances must be stricken if not orally pronounced. Since that condition was not orally pronounced here, we must strike that portion of condition six concerning the excessive use of intoxicants.
Finally, we consider condition seven, requiring appellant to work diligently to support his dependents to the best of his ability. We found that this condition need not be orally pronounced in Brown v. State, 613 So. 2d 558 (Fla. 2d DCA 1993), because it is statutorily authorized by section 948.03, Florida Statutes (1993), thus making it a general condition that need not be orally pronounced. Accordingly, we find no error in its imposition here.
We, therefore, affirm imposition of condition seven, that portion of condition six that prohibits appellant from visiting places where intoxicants are unlawfully sold, dispensed or used, and that portion of condition four that prohibits appellant from possessing, carrying or owning a firearm. That portion of condition four referring to the consent of the probation officer and that portion of condition six referring to the excessive use of intoxicants are stricken.
FRANK, C.J., and FULMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995)…he portion of condition (4) prohibiting carrying, possessing, or owning firearms. However, we strike the phrase “without first procuring the consent of your Probation Officer,” because the statutory prohibition may not be waived. Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994). We strike the general prohibition of weapons, as opposed to firearms, in condition (4) because it was not orally pronounced at sentencing. Special probation condition (6) reads: You will not use intoxicants to excess; nor will y…
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Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)…ctive, rather than in the disjunctive, the condition does not improperly imply that a convicted felon may possess a firearm with his probation officer’s permission. Compare, e.g., Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995); Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994). Possession of a firearm by a convicted felon is statutorily-prohibited. See § 790.23, Fla.Stat. (1993). Therefore the portion of this condition which prohibits defendant, a convicted felón, from owning or possessing a firearm, s…
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Rafe Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995)…ed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used. Pursuant to our recent decisions in Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995), and Jennings v. State, 645 So. 2d 592 (Fla.2d DCA 1994), we affirm the first sentence and strike the second sentence of condition four. We strike condition seven, except that portion prohibiting the defendant “from visiting places where certain substances are unlawfully sold, dispensed…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994)
- Wardell Farris Brown v. State, 613 So. 2d 558 (Fla. 2d DCA 1993)