ARTURO FARFAN FLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the conviction is affirmed, certain probation conditions and costs were improperly imposed and must be stricken.
The appellant challenged his judgment and sentence for possession of cocaine. Appellate counsel filed an Anders brief, indicating no meritorious groun…
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PATTERSON, Judge.
The appellant challenges his judgment and sentence for possession of cocaine. Appellate counsel has filed an Anders brief. We agree with the appellant’s counsel that there are no meritorious grounds for appeal as to the conviction and, therefore, affirm in part; however, we reverse certain probation conditions and costs which the trial court improperly imposed.
The following conditions were not orally pronounced at sentencing and must be stricken: condition (3), which prohibits the appellant from carrying weapons, Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995); and condition (5), which prohibits the appellant from using intoxicants to excess, Williams v. State, 653 So. 2d 407 (Fla. 2d DCA 1995), and from visiting places where unlawful drugs are used. Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992). Condition (18), which prohibits the appellant from associating with persons who use illegal drugs, must also be stricken since it is vague and capable of unintentional violation. Alvarez, 593 So. 2d at 290.
The trial court also improperly imposed certain costs. The $2 cost pursuant to section 943.25(13), Florida Statutes (1993), is a discretionary cost which was not announced at sentencing. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). No statutory authority was cited for the $33 cost/fine. See Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994). The trial court failed to determine the appellant’s ability to pay the $100 for FDLE lab work. See Callaway v. State, 658 So. 2d 593 (Fla. 2d DCA 1995); Johnson v. State, 620 So. 2d 791 (Fla. 1st DCA 1993). Accordingly, we strike these costs.
Affirmed in part; reversed in part.
SCHOONOVER, A.C.J., and LAZZARA, J., concur.
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Citator
Cited By
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Wilson v. State, 857 So. 2d 223 (Fla. 2d DCA 2003)…r sentencing error. After complete review of the appellate record, we agree. In the order of probation, the trial court imposed condition eighteen, which precluded Ms. Wilson from associating with “persons who use illegal drugs.” In Flor v. State, 658 So. 2d 1176 (Fla. 2d DCA 1995), we found such a condition unenforceable because it was too vague and capable of unintentional violation. See also Callaway v. State, 658 So. 2d 593, 595 (Fla. 2d DCA 1995). The trial court found to the contrary, as expressed in i…
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Demott v. State, 160 So. 3d 520 (Fla. 5th DCA 2015)…5), wherein the court struck an identical special condition of probation, concluding that prohibiting the defendant from associating with persons who use illegal drugs was “too vague and capable of unintentional violation.” Id. Accord Flor v. State, 658 So. 2d 1176, 1176 (Fla. 2d DCA 1995). In Wilson v. State, 857 So. 2d 223 (Fla. 2d DCA 2003), the Second District revisited the issue. There, as in the instant case, the defendant filed a rule 3.800(b)(2) motion challenging the probationary condition prohibiting…
Authorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Sutton v. State, 635 So. 2d 1032 (Fla. 2d DCA 1994)
- Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995)
- Deldesondro Callaway v. State, 658 So. 2d 593 (Fla. 2d DCA 1995)
- Williams v. State, 653 So. 2d 407 (Fla. 2d DCA 1995)
- Alvarez v. State, 593 So. 2d 289 (Fla. 2d DCA 1992)
- Johnson v. State, 620 So. 2d 791 (Fla. 1st DCA 1993)