CORNELIUS REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Certain conditions of probation were improperly imposed because they were not orally pronounced at sentencing and are therefore stricken.
[1] A condition of probation prohibiting the defendant from visiting places where intoxicants are unlawfully sold is a valid general condition that does not require oral pron…
[2] Conditions of probation prohibiting the defendant from using intoxicants to excess or possessing drugs without a prescription are special conditions that must be orally p…
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Join FLexlaw to unlock all legal intelligenceThe appellant was sentenced to probation after pleading guilty to being a felon in possession of a firearm. He challenged several conditions of his pr…
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WHATLEY, Judge.
The appellant, Cornelius Reed, challenges his judgments and sentences in tidal court case numbers 90-8697 and 93-698. While he presents several issues for review, we find merit only in his contention that certain conditions of probation were improperly imposed in case number 93-698. We, therefore, strike those conditions that are improper and affirm in all other respects.
In case number 93-698, Reed pled guilty to being a felon in possession of a firearm and was sentenced as a habitual offender to five years’ imprisonment, followed by three years’ drug offender probation. Reed now complains that several of the conditions enumerated in the written probation order were improperly imposed.
First, Reed contends that condition seven of his drug offender probation is invalid because it was not orally pronounced at sentencing. Condition seven prohibits Reed from using intoxicants to excess and from possessing any drugs or narcotics unless prescribed by a physician. It also bars Reed from visiting places where drugs or intoxicants are illegally sold.
Condition seven, to the extent it prevents Reed from visiting places where intoxicants are unlawfully sold, is a valid general condition which, pursuant to Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994), did not need to be orally pronounced at sentencing. Those portions of condition seven, however, which prohibit Reed from using intoxicants to excess or from being in possession of any drugs, constitute special conditions, which should have been orally pronounced. Id. Those conditions are, therefore, stricken.
Reed contends that special conditions thirteen and fourteen are also invalid for failure to be orally pronounced at sentencing. Condition thirteen prohibits Reed from consuming any alcohol or visiting establishments where alcohol is the main source of income. Condition fourteen imposes a 9:00 p.m. curfew on Reed, as per instruction from his probation officer. Since the record shows that special conditions thirteen and fourteen were not orally pronounced at sentencing as required, under Tomlinson, those conditions are also stricken.
Reed also challenges conditions twenty-two and twenty-five. The record shows, however, that Reed failed to object to those conditions, despite the fact they were orally pronounced at sentencing. His challenges to those conditions, therefore, have not been properly preserved for appellate review. Larson v. State, 572 So. 2d 1368 (Fla.1991). Further, Reed’s failure to object in this instance cannot be overlooked because conditions twenty-two and twenty-five are not “so egregious as to be the equivalent of fundamental error.” Id. at 1371.
Accordingly, condition seven is stricken in part, and conditions thirteen and fourteen are stricken in their entirety. Reed’s judgments and sentences are, otherwise, affirmed.
DANAHY, A.C.J., and CAMPBELL, J., concur.
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Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)…tencing hearing; the requirement of a curfew is neither part of the statutoiy conditions nor is it contained in rule 3.986. Accordingly, we strike these two special conditions because they were not orally pronounced at sentencing. See Reed v. State, 652 So. 2d 912 (Fla. 2d DCA 1995) (probation condition for defendant convicted of being felon in possession of firearm, which imposed 9:00 p.m. curfew, would be stricken, as it constituted a special condition not orally pronounced at sentencing); Zachary v. State,…
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Navarrion Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997)…Fla. 2d DCA 1995); Williamson v. State, 658 So. 2d 617 (Fla. 2d DCA 1995); Dexter v. State, 654 So. 2d 1248 (Fla. 2d DCA 1995); Heathcoe v. State, 654 So. 2d 1258 (Fla. 2d DCA 1995); Howard v. State, 652 So. 2d 956 (Fla. 2d DCA 1995); Reed v. State, 652 So. 2d 912 (Fla. 2d DCA 1995); Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995), quashed, 668 So. 2d 599 (Fla.1996); Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995). . See Weber v. State, 691 So. 2d 1 (Fla. 2d DCA 1995); Levely v. State, 685 So. 2d 847 (Fl…
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Boyd v. State, 688 So. 2d 959 (Fla. 2d DCA 1997)…o the Florida Department of Law Enforcement (FDLE). Accordingly, we strike the portion of Condition 18 concerning the consumption and possession of alcohol because it is a special condition that was not orally announced at sentencing. Reed v. State, 652 So. 2d 912 (Fla. 2d DCA 1996). We modify Condition 6 requiring defendant to work at suitable employment to state “to the best of his ability.” Gipson v. State, 670 So. 2d 1097 (Fla. 2d DCA 1996). We strike the portions of Conditions 8, 20, and 24 requiring def…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)