JAMES L. HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that certain probation conditions not orally pronounced at sentencing must be stricken, while others may be affirmed.
[1] A condition of probation prohibiting the possession, carrying, or ownership of firearms is permissible.
[2] A condition of probation prohibiting the possession, carrying, or ownership of weapons, as distinct from firearms, must be orally pronounced at sentencing if not included…
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Join FLexlaw to unlock all legal intelligenceAppellant was ordered to pay restitution, public defender fees, and adhere to probation conditions after pleading nolo contendere to attempted first-d…
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CAMPBELL, Judge.
Appellant, having pled nolo to attempted first degree murder with a firearm, challenges the restitution he was ordered to pay, the public defender fees he was ordered to pay, and several conditions of his probation. We find error only in the imposition of certain of the probation conditions.
Appellant argues that conditions four and six should be stricken. Condition four provides: “You will neither possess, carry or own any weapons or firearms.” Condition six provides: “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.”
Appellant contends that these conditions must be stricken because they were not orally 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 the following question of great public importance that was certified in Hart:
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?
Turning to condition six, in accord with Hart and Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994), we strike that portion of condition six that prohibits the excessive use of intoxicants because it was not orally pronounced at sentencing. We affirm the remainder of condition six as a more precise definition of a general condition that need not be orally pronounced. Tomlinson.
Affirmed in part, portions of probation conditions stricken, and question certified.
DANAHY, A.C.J., and WHATLEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Hart, 668 So. 2d 589 (Fla. 1996)…on “to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon.” . The same question has been certified in at least six other cases from the Second District: Hall v. State, 652 So. 2d 1197 (Fla. 2d DCA), review granted, 663 So. 2d 632 (Fla.1995); Emond v. State, 652 So. 2d 419 (Fla. 2d DCA), review granted, 660 So. 2d 715 (Fla.1995); Lietz v. State, 652 So. 2d 1186 (Fla. 2d DCA 1995); Farrington v. State, 654 So. 2d 564 (Fla. 2d DCA),…
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Bridgette Brown v. State, 658 So. 2d 1058 (Fla. 2d DCA 1995)…any weapons without first procuring the consent of your [probation] officer.” We affirm the portion of this condition that prohibits Brown, a convicted felon, from possessing, carrying or owning a firearm. § 790.23, Fla.Stat. (1991); Hall v. State, 652 So. 2d 1197 (Fla. 2d DCA 1995). We strike the second portion of the condition concerning other weapons because it was not announced in open court. Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). Brown also contests condition seven, which states: “You will…
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State v. Hall, 668 So. 2d 600 (Fla. 1996)…ON OP 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? See Hall v. State, 652 So. 2d 1197, 1197-98 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Since we have already answered the identical question in the affirmative in State v. Hart, 668 So. 2d 589 (Fla.1996), we quash the district court decision and remand t…
Authorities Cited
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995)
- Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995)
- Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995)