MICHAEL D. HEATHCOE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Heathcoe appealed his convictions and sentences, and appellate counsel filed an Anders brief indicating no meritorious issues. The court affirmed the convictions and sentences but modified the probation conditions and costs imposed, striking certain improper conditions and costs that lacked statutory authority or proper procedure.
The court affirmed the convictions and sentences but modified the probation conditions and costs: the restriction on firearm possession was affirmed but the restriction on other weapons was struck; one probation condition regarding intoxicants and drugs was struck because not orally pronounced at sentencing while another was affirmed; the $2 discretionary court cost was struck for lack of notice and opportunity to be heard; the $100 county court improvement fund assessment was struck for lack of legal basis; and the $100 prosecution cost was struck for lack of proper agency request and documentation.
[1] A trial court may not impose a discretionary cost without providing the defendant notice and an opportunity to be heard.
[2] A condition of probation prohibiting the possession of weapons, other than firearms, may be affirmed if it is a precise definition of a generally authorized condition.
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Join FLexlaw to unlock all legal intelligence“We affirm the first sentence which prohibits ownership or possession of a firearm and strike the second sentence pertaining to weapons.”
Demonstrates the court's application of Emond precedent to sever permissible from impermissible probation conditions.
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Join FLexlaw to unlock all legal intelligenceMichael D. Heathcoe was convicted and sentenced to probation with various conditions and costs imposed by the trial court. The probation conditions in…
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FULMER, Judge.
Appellate counsel for the defendant, Michael D. Heathcoe, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After an independent review of the record and the law, we see no error affecting his convictions and sentences and therefore affirm. However, we strike certain conditions of probation.
The trial court improperly imposed two special conditions. Condition 4 provides, “You will not possess, carry or own any firearms. You will not possess, carry, or own any weapons without first procuring the consent of your officer.” We affirm the first sentence which prohibits ownership or possession of a firearm and strike the second sentence pertaining to weapons. See Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995).
Condition 7 provides, “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.” We strike the first sentence relating to excessive use of intoxicants or possession of any drugs or narcotics unless prescribed by a physician because it was not orally pronounced at sentencing. We affirm the second sentence because it is a more precise definition of the general condition of probation authorized by section 948.03(l)(i), Florida Statutes. See Emond, 652 So. 2d 419.
The trial court also imposed three costs in error. First, condition 15 imposes $255 in court costs. These court costs include $2 pursuant to section 943.25(13), Florida Statutes (1993). The record establishes that the trial court did not give the defendant notice and the opportunity to be heard before imposing this discretionary cost. Accordingly, we strike the $2 discretionary court cost. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995) (en banc); Priest v. State, 20 Fla.L. Weekly D84, — So. 2d — [1994 WL 714440] (Fla. 2d DCA Dec. 28, 1994).
Second, condition 16 imposes $100 to the Hillsborough County Court Improvement Fund. As we stated in Reyes, 655 So. 2d 111, there is no legal basis for this assessment. Accordingly, we strike this condition.
Third, condition 17 assesses $100 for the costs of prosecution, pursuant to section 939.01, Florida Statutes (1993). As in Reyes, 655 So. 2d 111, this cost must be stricken because the record does not reveal that it was “expressly requested by a specific agency with adequate supporting documentation.”
Accordingly, we affirm the convictions and sentences, modify and strike certain conditions of probation, and remand to the trial court to allow imposition of costs of prosecution if properly requested by the state.
PATTERSON, A.C.J., and BLUE, J., concur.
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Navarrion Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997)…Concur. . See Raimondo v. State, 666 So. 2d 180 (Fla. 2d DCA 1995); Geeding v. State, 662 So. 2d 997 (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…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Rafe Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995)