SAMUEL M. FITTS, 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.
Samuel Fitts appeals his conviction for third-degree murder in the death of Carlos Velasquez. The appellate court affirmed his judgment and ten-year sentence but modified certain probation conditions that were either overly broad or not properly pronounced at sentencing.
The court affirmed the judgment and sentence but modified the probation conditions. The portion of condition (4) allowing firearm possession with probation officer consent was struck as contrary to Florida statute. The phrase requiring probation officer consent for weapon possession was struck as the statutory prohibition cannot be waived. Condition (6)'s prohibition on excessive intoxicant use was struck for lack of oral pronouncement at sentencing, but the remainder prohibiting visits to places where drugs are unlawfully sold was upheld as valid.
[1] A condition of probation prohibiting possession of firearms is a general condition that need not be orally pronounced at sentencing.
[2] A condition of probation prohibiting the carrying of weapons not enumerated in section 790.23, Florida Statutes, must be orally pronounced at sentencing if it is to be im…
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“Section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.”
Establishes that the statutory prohibition on felon firearm possession cannot be waived by probation officer consent
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn August 27, 1991, Carlos Velasquez was fatally beaten. Samuel M. Fitts was adjudicated guilty of third-degree murder and sentenced to ten years in p…
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 Third Degree Murder cases and more on FLexlaw
THREADGILL, Judge.
Samuel M. Fitts challenges the judgment and sentence for third-degree murder arising from the fatal beating of Carlos Velasquez on August 27, 1991.1 He was adjudicated guilty and sentenced to ten years in prison followed by five years of probation. We affirm the judgment and sentence.
Special probation condition (4), reads:
You will neither possess, carry or own any weapons or firearms without first securing the consent of your Probation Officer. We strike that portion of the condition that improperly implies that a convicted felon may possess a firearm with his probation officer’s permission. Section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices. Thus, part of condition (4) is a general condition for which no oral pronouncement is needed, and we therefore affirm the 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 you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used.
Pursuant to Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994), we strike that portion of the condition prohibiting the excessive use of intoxicants because it was not orally pronounced at sentencing.
However, the remaining part of the condition is valid as a more precise definition of a general prohibition and need not be orally pronounced. Id. See also Chitty v. State, No. 93-003431, 1994 WL 714418 (Fla. 2d DCA Dec. 28, 1994).
We therefore affirm the judgment and sentence as modified by this opinion.
RYDER, A.C.J., and ALTENBERND, J., concur. . The appellant adopts the brief of his codefend-ant, Yancy Lamar Dunbar. Our disposition of the codefendant's appeal has been reported: Dunbar v. State, 633 So. 2d 1136 (Fla. 2d DCA 1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
-
Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)…icer.”2 Because the condition is written in the conjunctive, 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 c…
-
Deldesondro Callaway v. State, 658 So. 2d 593 (Fla. 2d DCA 1995)…of a felony to own or have in his care, custody, possession, or control any firearm, that portion of condition (3) prohibiting possessing, carrying, or owning firearms is a general condition for which no oral pronouncement is needed. Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995). We, therefore, affirm that portion of condition (3). However, we strike the general prohibition of weapons and destructive devices in condition (3) because it was not orally pronounced at sentencing. See Fitts, 649 So. 2d at 301.…
-
Dolphis A. Hamilton v. State, 653 So. 2d 1068 (Fla. 2d DCA 1995)…arms or destructive devices. The appellant, a convicted felon, is already legally prohibited from possessing, owning or carrying firearms, therefore, that portion is a valid general condition and did not need to be orally pronounced. Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995). We strike the remaining portion of condition three relating to weapons or destructive devices because it was not pronounced at sentencing. The portion of condition five that prohibits the use of intoxicants to excess is a specia…
Previewing 3 of 24 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)
- Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994)
- Hopps v. State, 633 So. 2d 1136 (Fla. 2d DCA 1994)