ANTHONY HART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal, Second District, reviewed whether certain probation conditions must be stricken for not being orally pronounced at sentencing. The court affirmed some conditions, struck others for lack of oral pronouncement, and certified a question of great public importance to the Florida Supreme Court regarding notice provided by a standardized probation form.
The court held that condition 13 was properly orally pronounced. It affirmed the portion of condition 4 prohibiting firearm possession by a convicted felon, but struck the portion allowing the probation officer to consent to firearm possession and the prohibition on weapon possession due to lack of oral pronouncement. The portion of condition 6 prohibiting excessive intoxicant use was also stricken for lack of oral pronouncement, while the remainder was affirmed.
[1] Probation conditions not found in statutory law are considered special conditions and must be orally pronounced at sentencing to be enforceable.
[2] Defendants are presumed to have notice of statutory probation conditions, obviating the need for oral pronouncement.
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Join FLexlaw to unlock all legal intelligence“Whether probation conditions are special or general is the bright line between conditions that must be orally pronounced at sentencing and those for which oral pronouncement is unnecessary.”
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Join FLexlaw to unlock all legal intelligenceAnthony Hart appealed his probation conditions, arguing that conditions 4 and 6 were not orally pronounced at sentencing and should be stricken. Condi…
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BLUE, Judge.
Once again this court is called upon to determine if conditions of probation must be stricken because the trial court failed to orally pronounce them at sentencing. Specifically, Anthony Hart challenges the following conditions contained in the order of probation filed on November 17, 1992:
(4) You will neither possess, carry, or own any weapon or firearm 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.
(13) You shall submit to and pay for an evaluation to determine whether or not you have any treatable problem with alcohol and/or any illegal drug. If you have said problem, you are to submit to, pay for, and successfully complete any recommended treatment program as a result of said evaluation, all to be completed at the discretion of your Probation Officer. Contrary to Hart’s contention, condition 13 was orally pronounced at sentencing and, therefore, we find no merit to his argument on this condition.
Conditions 4 and 6, and variations of these two conditions, are reviewed by this court with great frequency. These two conditions are similar to conditions 4 and 7 in the probation order form approved by the Florida Supreme Court and found in Florida Rule of Criminal Procedure 3.986. The relevant conditions, as stated in rule 3.986, are:
(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer. (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.
Rule 3.986 contains two lists of probation conditions. The first section, which is not separately titled, lists eleven conditions including numbers 4 and 7 quoted above. The second section is titled “SPECIAL CONDITIONS” and lists nine additional conditions that apply if checked. Although conditions 4 and 7 are not part of thé “special conditions” list in the approved form, this court has determined that they are special conditions because they are not statutory conditions, i.e., probation conditions set forth in chapter 948, Florida Statutes (1991). Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992).
Whether probation conditions are special or general is the bright line between conditions that must be orally pronounced at sentencing and those for which oral pronouncement is unnecessary. Notice of probation conditions is required because defendants placed on probation normally do not see the probation order until they report to the probation office sometime after sentencing. Because a defendant must make a contemporaneous objection to probation conditions at the time of sentencing, the defendant must be informed of conditions being imposed. Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992) (en banc).
We have held, and continue to hold, that defendants have notice of all probation conditions contained in the statutes; therefore, there is no obligation to orally pronounce these conditions. Everyone is presumed to know the law and if, as a practical matter, the defendants themselves are not aware of these conditions, the knowledge of their attorney is imputed to them.
We believe the continuing problem of the probation conditions listed above arises from a misunderstanding of what constitutes a general condition of probation. We have consistently held that the only “general conditions” of probation are those contained within the statutes. At the trial court, however, it is apparently assumed that “general conditions” include all those contained in the approved probation order in rule 3.986. We note that the rules require trial courts to use this form when placing a defendant on probation. Thus, trial courts fail to orally pronounce the conditions they assume to be “general conditions” and we continue to strike in whole or in part the very same conditions because we have held that they are “special conditions” not orally pronounced.
Because we reverse trial courts far more often for failure to orally pronounce special conditions of probation than any other district court, it occurs to us that we may have too strictly defined “general conditions” of probation. Additionally, this district’s case law striking probation conditions for lack of oral pronouncement developed prior to the amendment of rule 3.986 adding the probation form. It is possible that this addition provides sufficient notice to make oral pronouncement unnecessary. Therefore, we certify the following question of great public importance to the Florida Supreme Court:
DOES THE SUPREME COURT’S PROMULGATION OF THE FORM ‘ORDER OF PROBATION’ IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.986 CONSTITUTE SUFFICIENT NOTICE TO PROBATIONERS OF CONDITIONS 1-11 SUCH THAT ORAL PRONOUNCEMENT OF THESE CONDITIONS BY THE TRIAL COURT IS UNNECESSARY? As to appellant Hart, we affirm condition 13. We affirm condition 4 insofar as it prohibits Hart, a convicted felon, from owning or possessing a firearm. See § 790.23, Fla.Stat. (1991). We strike the portion of condition 4 implying that Hart’s probation officer may consent to Hart’s possession of a firearm. See Beckner v. State, 604 So. 2d 842 (Fla. 2d DCA 1992). We also strike the portion of condition 4 that prohibits the possession or ownership of any weapon because it was not orally pronounced at sentencing. We strike the portion of condition 6 that prohibits the excessive use of intoxicants because it was not orally pronounced at sentencing. We affirm the balance of condition 6 as a precise definition of a general prohibition that need not be orally pronounced. See Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994).
Affirmed in part, portions of probation conditions stricken, and question certified.
DANAHY, A.C.J., and FULMER, J., concur.
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Citator
Cited By (27 total)
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State v. Hart, 668 So. 2d 589 (Fla. 1996)…N OF THE FORM ‘ORDER [*591] OF PROBATION’ IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.986 CONSTITUTE SUFFICIENT NOTICE TO PROBATIONERS OF CONDITIONS 1-11 SUCH THAT ORAL PRONOUNCEMENT OF THESE CONDITIONS BY THE TRIAL COURT IS UNNECESSARY? Hart v. State, 651 So. 2d 112, 113 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative. I. FACTS On March 13, 1991, Anthony Hart was charged with attempted burglary. After…1 / 2
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Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)…he trial court’s failure to orally pronounce conditions of probation at the time of sentencing which are then contained in the written conditions signed by the trial court. Apparently this problem is shared by the second district. See Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995), review granted, 659 So. 2d 1089 (Fla.1995); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994). A brief overview of the law on this' subject may be helpful in sorting out the confusion between those conditions which must be orally…
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Rafe Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995)…o 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. 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 place…1 / 2
Previewing 3 of 27 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)
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Porter v. State, 609 So. 2d 640 (Fla. 1st DCA 1992)
- Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992)
- Beckner v. State, 604 So. 2d 842 (Fla. 2d DCA 1992)