JOHNATHAN STARK, A/K/A JEFFERY RAY COHOON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnathan Stark challenged his sentences in two criminal cases after pleading no contest and being found guilty. The appellate court found that the written sentencing order in one case did not conform to the trial court's oral pronouncement, certain probation conditions were improper, and accordingly reversed and remanded for resentencing and correction of probation terms.
The written sentencing order must be remanded to conform to the trial court's oral pronouncement that all sentences run concurrently. The portion of probation condition (4) implying permission to possess a firearm with probation officer approval must be stricken because convicted felons may not lawfully possess firearms. The portion of condition (7) prohibiting excessive use of intoxicants must be stricken as it was not orally pronounced, but the portion prohibiting visits to places where intoxicants are illegally sold may remain.
[1] A written sentencing order must conform to the trial court's oral pronouncement of sentence.
[2] A convicted felon is prohibited from lawfully possessing a firearm, and probation conditions cannot imply otherwise.
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“it appears that the trial court orally pronounced at sentencing that the sentences in both cases were to run concurrently, however, the written sentencing order in ease number 93-08688 provides that those sentences were to run concurrently with only a portion of the sentences imposed in case number 93-10466”
Establishes the discrepancy between oral pronouncement and written order that required remand for correction.
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Join FLexlaw to unlock all legal intelligenceStark pleaded no contest and was adjudicated guilty in two cases involving multiple charges: Case 93-08688 included armed burglary of a dwelling, arme…
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PER CURIAM.
The appellant, Johnathan Stark, a/k/a Jeffery Ray Cohoon, challenges the sentences imposed upon him in two cases after he pled no contest and was found guilty of the charges contained therein. We find that the trial court erred in sentencing the appellant and, accordingly, reverse and remand for resentencing.
In case number 93-08688, the appellant pled no contest, was adjudicated guilty, and the written sentencing order provided as follows: armed burglary of a dwelling, ten years in prison followed by five years probation; armed burglary of a conveyance, ten years in prison followed by five years probation; and possession of burglary tools, five years in prison. Those sentences were to run concurrently with each other and concurrently with counts II, III, and IV of case number 93-10466 and concurrently with the probation portion of count I in case number 93-10466. In case number 93-10466, the appellant pled no contest, was adjudicated guilty and the written sentencing order provided as follows: burglary of a dwelling (count I), ten years in prison followed by five years probation; and for the three grand theft counts (counts II, III, and IV), five years probation consecutive to the prison sentence. Those sentences were to run concurrently with the sentences imposed in case number 93-08688. The appellant filed a timely notice of appeal.
The appellant first challenges the written sentencing order in case number 93-08688 on the grounds that it did not comport with the trial court’s oral pronouncement at sentencing. We agree since it appears that the trial court orally pronounced at sentencing that the sentences in both cases were to run concurrently, however, the written sentencing order in ease number 93-08688 provides that those sentences were to run concurrently with only a portion of the sentences imposed in case number 93-10466. The case must, therefore, be remanded to conform the written sentences to the trial court’s oral pronouncement. See Williams v. State, 591 So. 2d 329 (Fla. 2d DCA 1992).
The appellant next challenges probation conditions (4) and (7) from his order of probation. We first consider probation condition (4), concerning the firearm possession prohibition. We agree that the portion of probation condition (4), which implies that the defendant may possess a firearm with his probation officer’s permission, 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).
We next consider probation condition (7), which provides: “(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used.” The state concedes, and we agree, that the portion of the condition prohibiting the excessive use of those substances must be stricken since the trial court failed to announce it in open court, thus preventing appellant from having the opportunity to object to its imposition. See Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). The remaining portion of that condition, however, which prohibits a probationer from visiting places where intoxicants are illegally sold, dispensed or used is valid as a more precise definition of a general prohibition and, as such, need not be orally pronounced. See Chitty v. State, 20 Fla.L.Weekly D76, — So. 2d—(Fla. 2d DCA Dec. 28, 1994).
We, accordingly, reverse and remand for correction of the written sentences in case number 93-08688 to comport with the trial court’s oral pronouncement. We also strike that portion of condition (4) which implies that the appellant may possess a firearm with his probation officer’s permission. We affirm that portion of condition (7) that prohibits appellant from visiting places where intoxicants are illegally sold, dispensed, or used but strike that portion prohibiting the excessive use of intoxicants.
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and SCHOONOVER and FULMER, JJ., concur.
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Hall v. State, 652 So. 2d 1197 (Fla. 2d DCA 1995)…pronounced at sentencing. We will consider them singly. In conformance with other pronouncements of this court, we affirm that portion of condition four that prohibits appellant from possessing, carrying or owning any firearms. See Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995); Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995); Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995). Also following the dictates of those cases, we strike the reference to weapons contained in condition four. We further certify t…
Previewing 3 of 8 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)
- Williams v. State, 591 So. 2d 329 (Fla. 2d DCA 1992)