PHILLIP FRANK LUBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Luby was convicted on a no-contest plea to battery on a police officer, resisting arrest with violence, and battery. This appeal affirms the judgment and sentences but reverses and remands the probation conditions, striking two conditions and modifying a third as exceeding statutory authority or lacking proper pronouncement at sentencing.
Condition 4 must be stricken because it impermissibly suggests a convicted felon may lawfully possess firearms with probation officer permission. Condition 9 must be stricken for lack of statutory authority. Condition 10's language requiring testing "at your own expense" must be removed because section 948.03(1)(f) does not authorize cost-shifting to the defendant, and the additional expense requirement constitutes a special condition requiring oral pronouncement at sentencing.
[1] A condition of probation prohibiting a convicted felon from possessing firearms, which implies that possession may be permitted with a probation officer's consent, must b…
[2] A condition of probation requiring payment of a nominal amount to a third-party organization is invalid absent statutory authority.
Previewing 2 of 4 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“This court has held that condition implies that the defendant may possess a firearm with his probation officer's permission and must be stricken because, as a convicted felon, the defendant may not lawfully possess a firearm.”
Establishes the rationale for striking Condition 4 regarding firearm possession, as it unlawfully permits conduct prohibited by law for convicted felons.
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Join FLexlaw to unlock all legal intelligencePhillip Frank Luby entered a no-contest plea to charges of battery on a police officer, resisting arrest with violence, and battery. The trial court i…
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PARKER, Judge.
The attorney for appellant, Phillip Frank Luby, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating he has found no issues of merit in the judgment and sentences entered in this case following Luby’s no contest plea to charges of battery on a police officer, resisting arrest with violence, and battery. We affirm the judgment and sentences; however, our review of the record discloses that Conditions 4 and 9 of probation must be stricken and Condition 10 must be modified. We, therefore, reverse the conditions of probation which were improperly imposed and remand for further proceedings.
Condition 4 prohibits Luby from possessing, carrying or owning any weapons or firearms without first securing the consent of his probation officer. This court has held that condition implies that the defendant may possess a firearm with his probation officer’s permission and must be stricken because, as a convicted felon, the defendant may not lawfully possess a firearm. See Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994); Crawford v. State, 616 So. 2d 1158 (Fla. 2d DCA 1993). See also Grate v. State, 623 So. 2d 591 (Fla. 5th DCA 1993) (upholding the condition that the defendant not possess firearms but striking that portion which delegates the authority to approve possession by the probation officer).
Condition 9 orders Luby to pay one dollar per month to First Step, Inc. This condition must be stricken because there is no statutory authority referenced for the imposition of those costs. See Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994); Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994). Accordingly, we strike both Conditions 4 and 9.
Condition 10 orders Luby to submit to random testing as directed by his probation officer, at his own expense, to determine the presence of alcohol or controlled substances. This condition was not orally pronounced at sentencing. Section 948.03(1)®, Florida Statutes (1992), authorizes the imposition of the condition to submit for random drug testing; however, the additional requirement that the testing be conducted at “the defendant’s own expense” is not authorized by section 948.03(1)®. In Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992), the First District concluded that the additional requirement that the defendant submit to random testing at “his own expense” renders the condition a special condition which must be orally pronounced at sentencing. We, therefore, strike the words “at your own expense” from that condition and affirm the remainder of that condition. See Cumbie.
The judgment and sentences are affirmed. We remand this case to the trial court to strike from the order of probation Conditions 4 and 9, and to modify Condition 10 in accordance with this opinion.
RYDER, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Paleno Estrada v. State, 689 So. 2d 372 (Fla. 2d DCA 1997)…firm the defendant’s conviction. We strike, however, that portion of probation condition 9 requiring Mr. Estrada to pay for random drug and alcohol testing because it is a special condition that was not orally announced at sentencing. Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995). We affirm the sentence in all other respects. CAMPBELL, A.C.J., and LAZZARA and WHATLEY, JJ., concur.…
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Boyd v. State, 688 So. 2d 959 (Fla. 2d DCA 1997)…Fla. 2d DCA 1996). We strike the portions of Conditions 8, 20, and 24 requiring defendant to pay for drug and alcohol testing, evaluation, and treatment because they are special conditions that were not orally announced at sentencing. Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995). Additionally, we strike the portion of Condition 20 relating to alcohol evaluation and treatment because it is a special condition that was not orally announced at sentencing. Sims v. State, 688 So. 2d 337 (Fla. 2d DCA Dec. 4, 19…
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Taurance Young v. State, 663 So. 2d 1376 (Fla. 5th DCA 1995)…he requirement that a defendant pay for such testing is not authorized by section 948.03(l)(k), Florida Statutes (Supp. 1994), and as such constitutes a special condition of probation, which must be orally announced at sentencing. See Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995). Under these circumstances, the practice of this district is to remand to the trial court, to permit it to resolve the discrepancy between the written record and the record of the oral pronouncement. If these conditions are to be…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992)
- Denson Emory Grate v. State, 623 So. 2d 591 (Fla. 5th DCA 1993)
- Bruce v. Crawford, 616 So. 2d 1158 (Fla. 2d DCA 1993)
- Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994)