LEON GILBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Leon Gilbert appealed his conviction for driving with suspended license, tampering with evidence, and marijuana possession, as well as probation conditions imposed. The court affirmed the convictions but reversed and remanded to strike two probation conditions that were not orally pronounced by the trial judge.
The court affirmed the conviction for tampering with evidence, finding sufficient evidence that Gilbert possessed the contraband, as police had constructive possession from seizure through recovery. The court reversed and remanded to strike probation conditions (4) and (7) because the trial judge failed to orally pronounce these conditions upon sentencing, as required by law.
[1] Evidence is sufficient to establish possession of contraband when police have constructive possession from the time of seizure to recovery, even if the contraband is temp…
[2] Exigent circumstances may justify police actions, such as leaving contraband unattended during a pursuit.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We find that from the time of seizure to the recovery of the marijuana, the police had constructive possession of the contraband and that the evidence is sufficient to establish Gilbert's possession of the contraband.”
Establishes the basis for affirming the tampering with evidence conviction despite police leaving the vehicle during the investigation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice conducted a consensual search of Gilbert's vehicle and discovered a baggie of marijuana with a hole in it. During the investigation, police had…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Oral Pronouncement Of Probation Conditions cases and more on FLexlaw
RYDER, Acting Chief Judge.
Leon Gilbert appeals from his conviction and the probation conditions imposed for driving while license suspended, tampering with evidence and possession of marijuana. We affirm the convictions, but because the trial judge failed to orally pronounce conditions of probation, we reverse and remand to strike probation conditions (4) and (7).
Gilbert first argues that the trial court erred in denying his motion to dismiss the charge of tampering with evidence because no prima facie case was shown that he removed the contraband from the vehicle. The state filed a demurrer in response. The police had gained physical custody of a baggie of marijuana during a consensual search of the vehicle when the 5:00 a.m. investiga tion was interrupted by the need to pursue a passenger fleeing from the scene. The baggie, containing the marijuana, had a hole in the bottom. Although the police left the contraband in the vehicle during the chase after the escaping passenger, we believe exigent circumstances justified the officer’s actions. One officer was two hundred yards away when he promptly returned after a second officer joined the chase. Another officer and a passenger saw Gilbert re-enter the vehicle. The officer testified Gilbert was in the rear seat area searching for something. When the first officer returned, the marijuana was not in the vehicle, but after a brief search, he found it in the baggie with a hole across the road some ten feet away.
We find that from the time of seizure to the recovery of the marijuana, the police had constructive possession of the contraband and that the evidence is sufficient to establish Gilbert’s possession of the contraband. We distinguish this scenario from the facts in Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991) and Boice v. State, 560 So. 2d 1383 (Fla. 2d DCA 1990), where the police never had physical custody of the contraband. We therefore affirm the conviction.
Gilbert also appeals from conditions (4), (6) and (7) because the trial judge failed to orally pronounce the conditions upon sentencing. We find error in the imposition of probation conditions (4) and (7). Probation condition (4), which forbids appellant from possessing weapons and firearms without first obtaining permission from his probation officer, was improperly imposed because it was not announced in open court. Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992). Similarly, probation condition (7) which forbids appellant from using intoxicants to excess and visiting places where they are unlawfully used or dispensed was improperly imposed for the same reason. See Tillman. We therefore strike conditions (4) and (7).
Reversed and remanded for resentencing.
PATTERSON and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lowell v. State, 652 So. 2d 975 (Fla. 1st DCA 1995)…91); consequently, the court was required to orally pronounce it. As such was not done, the condition must be stricken. Vincent v. State, 600 So. 2d 1292 (Fla. 1st DCA 1992); Stackhouse v. State, 576 So. 2d 923 (Fla. 1st DCA 1991); Gilbert v. State, 647 So. 2d 853 (Fla. 2d DCA 1994) (on reh’g). The mandatory minimum applicable to aggravated assault on a law enforcement officer is one year, not three years as was imposed on appellant. See § 775.0823(7), Fla.Stat. (1991); Zitzman v. State, 640 So. 2d 1219 (Fl…
-
Rudnicki v. State, 655 So. 2d 1275 (Fla. 2d DCA 1995)…nsent to his possession of a firearm. This situation highlights the potential confusion inherent in a trial court’s failure to pronounce orally special conditions of probation. Accordingly, condition number four must be stricken. Gilbert v. State, 647 So. 2d 853 (Fla. 2d DCA 1994). Affirmed in part; reversed in part; remanded. RYDER and THREADGILL, JJ., concur.…
Authorities Cited
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Boice v. State, 560 So. 2d 1383 (Fla. 2d DCA 1990)
- Thomas v. State, 581 So. 2d 993 (Fla. 2d DCA 1991)