CEDRIC JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cedric Johnson appeals his convictions for cocaine delivery and possession, challenging several probation conditions imposed at sentencing. The court affirms the convictions and sentences but strikes certain probation conditions that were either improperly worded or not orally pronounced as required by law.
The court affirms the judgments and sentences but strikes: (1) the portion of the firearm condition allowing possession with probation officer consent, as this conflicts with Florida law prohibiting felons from possessing firearms; (2) the portion prohibiting weapon possession generally, as this special condition was not orally pronounced; and (3) the portion of the intoxicant condition restricting use to excess, as this special condition was not orally pronounced.
[1] A probation condition prohibiting possession of a weapon by a convicted felon is invalid if it allows for possession with the probation officer's consent.
[2] A probation condition prohibiting possession of any weapon constitutes a special condition that must be orally pronounced at sentencing.
Previewing 2 of 5 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“The probation condition as imposed improperly implies a convicted felon may possess a firearm or concealed weapon with his probation officer's permission. That portion of the condition referring to the consent of the probation officer must be stricken.”
Establishes that statutory prohibitions on felon firearm possession cannot be circumvented by probation officer consent
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Join FLexlaw to unlock all legal intelligenceJohnson was found guilty of two counts of delivery of cocaine and two counts of possession of cocaine. At sentencing, the trial court imposed several …
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QUINCE, Judge.
Appellant, Cedric Johnson, seeks review of his judgments and sentences for possession and delivery of cocaine. Although appellant raises two issues, we only find merit in his challenge to several of his probation conditions. Because several of these conditions were improperly imposed, we strike them but affirm the judgments and sentences in all other respects.
The appellant was found guilty of two counts of delivery of cocaine and two counts of possession of cocaine. The court imposed the following probation condition as condition four in the written sentencing order: appellant is not allowed to possess or carry firearms, nor to possess or carry any weapon without his probation officer’s consent.
Pursuant to section 790.28(1), Florida Statutes (1993), a convicted felon is prohibited from possessing or carrying a firearm or concealed weapon. The probation condition as imposed improperly implies a convicted felon may possess a firearm or concealed weapon with his probation officer’s permission. That portion of the condition referring to the consent of the probation officer must be stricken. Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994).
Additionally, this condition prohibits the appellant from being in possession of any weapon. This prohibition constitutes a special condition which must be orally pronounced. Since this part of condition four was not orally pronounced, it too must be stricken on remand.
The court also imposed the following probation condition as condition seven in the written sentencing order without orally pronouncing it in open court: appellant is not to use intoxicants to excess nor possess any drugs or narcotics not prescribed by a physician, nor visit places where intoxicants or drugs are unlawfully sold or used. Condition seven is a valid general condition of probation to the extent it prevents the appellant from visiting places where intoxicants are unlawfully sold and prohibits the possession of illegal drugs. Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994).
However, the portion of the condition concerning the use of intoxicants to excess is a special condition of probation which must be orally pronounced at sentencing. Id. Since this part of the condition was not orally pronounced, it must be stricken.
We remand with instructions to strike those portions of condition four referring to consent of the probation officer and possession of a weapon and that portion of condition seven concerning use of intoxicants to excess. Appellant’s judgments and sentences are otherwise affirmed.
RYDER, A.C.J., and BLUE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994)