DAVID SWANSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Swanson appealed his sentences for escape and grand theft convictions, challenging the sentencing scheme imposed by the trial court. The appellate court affirmed the convictions but reversed and remanded for resentencing due to multiple sentencing errors, including improperly imposed probationary conditions, incorrect cost calculations, and improper commencement of probation while the defendant was still incarcerated.
The appellate court held that the weapons prohibition and intoxicant restriction conditions were invalid because they were not orally pronounced at sentencing; the court costs of $255 were erroneous because only $225 was authorized under the 1991 statute in effect at the time of the offense; and the probationary term for grand theft must commence upon the appellant's release from prison on all charges, not on the sentencing date.
[1] A special condition of probation must be orally pronounced at the sentencing hearing to be valid.
[2] A trial court errs by imposing court costs that exceed the statutory amount authorized at the time the offenses were committed.
Previewing 2 of 4 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“We have held that this weapons condition is a special condition of probation that must be orally pronounced at the sentencing hearing to be valid.”
Establishes the requirement that special probationary conditions must be orally pronounced to be valid, invalidating the unpronounced weapons prohibition.
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Join FLexlaw to unlock all legal intelligenceSwanson pleaded no contest to charges of escape and grand theft, both offenses occurring in 1991. At sentencing, the trial judge imposed five years' p…
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DANAHY, Acting Chief Judge.
We review the sentence imposed upon the appellant after he pleaded no contest to charges of escape and grand theft, both offenses occurring in 1991. The appellant’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with our duty under In re Anders Briefs, 581 So. 2d 149 (Fla.1991), we independently reviewed the record and identified several possible sentencing errors; consequently, we ordered and received supplemental briefs from both parties. The state concedes error in imposing unpronounced probationary conditions and certain costs. We also clarify the incar-cerative and probationary portions of the sentencing scheme.
In sentencing for the grand theft conviction, the trial judge placed the appellant on five years’ probation to commence that day, i.e., the day of the sentencing hearing, and added restitution as a special condition. The trial judge also imposed court costs of $255 and $200 for reasonable attorney’s fees. The written order of probation provided for restitution and costs, but condition 4 also provided a prohibition against possessing, carrying, or owning a weapon without first procuring the consent of the appellant’s probation officer. We have held that this weapons condition is a special condition of probation that must be orally pronounced at the sentencing hearing to be valid. Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995).
We also strike that portion of condition 7 prohibiting the excessive use of intoxicants for the same reason. Id.; Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994).
Of the total costs of $255 imposed, $50 represents costs pursuant to section 960.20, Florida Statutes (1993).
It was error to impose a total of $255 because the statute in effect at the time the appellant committed the instant offenses only authorized $20 as court costs instead of the $50 authorized at the time of sentencing. See § 960.20, Fla. Stat. (1991).
The trial judge should not have imposed more than $225 in costs. Finally, it was error for the trial judge to order that the probationary term of five years for the grand theft commence on the day of the sentencing hearing. At the time of that hearing the appellant was serving a prison sentence and his release date was scheduled for some three months later. Regardless of this, the appellant had to serve his three-year prison sentence for the escape conviction consecutively to any former prison sentence. § 944.40, Fla.Stat. (1991).
At re-sentencing, the trial judge must order that any probation for grand theft commence when the appellant is released from prison on all charges. See Vihinen v. State, 368 So. 2d 626 (Fla. 4th DCA 1979) (in construing chapter 948 it is clear the legislature intended probation to follow, not precede, any period of incarceration).
We affirm the appellant’s convictions but reverse the sentences and remand for resentencing.
SCHOONOVER and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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King v. State, 990 So. 2d 1191 (Fla. 5th DCA 2008)…eased from incarceration. § 948.01(6), Fla. Stat. (2001) (“The period of probation or community control shall commence immediately upon the release of the defendant from incarceration, whether by parole or gain-time allowances.”);3 Swanson v. State, 656 So. 2d 503 (Fla. 2d DCA 1995); Johnson v. State, 561 So. 2d 1254, 1255-56 (Fla. 2d DCA 1990) (“The fact that [the defendant] was mistakenly released from custody before serving a prison sentence did not terminate that sentence and commence his probation. The a…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995)
- Vihinen v. State, 368 So. 2d 626 (Fla. 4th DCA 1979)