PATRICK SCOTT MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Scott Murphy appealed his conviction challenging the trial court's denial of his motion to withdraw his guilty plea and several probation conditions and cost items. The appellate court affirmed the denial of the plea withdrawal motion but reversed and remanded regarding three probation conditions and four cost items that were imposed without proper oral pronouncement or notice and opportunity to be heard.
The court affirmed the denial of the motion to withdraw the plea without further comment. However, the court reversed and struck three probation conditions because they either were not orally pronounced at sentencing or were facially invalid (allowing a felon to possess prohibited weapons with probation officer consent), and reversed and struck four cost items because they were imposed as discretionary costs without notice or opportunity to be heard, or lacked statutory authority.
[1] A probation condition prohibiting the carrying of weapons not enumerated in section 790.23, Florida Statutes, must be stricken if not orally pronounced.
[2] A probation condition that implies a felon may possess a prohibited weapon or firearm with the permission of a probation officer must be stricken.
Previewing 2 of 6 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“To the extent this condition implies a felon may possess a prohibited weapon or firearm with the permission of his probation officer, it must be stricken.”
Establishes that probation conditions cannot permit felons to possess prohibited weapons even with probation officer consent, as this violates statutory law.
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Join FLexlaw to unlock all legal intelligenceMurphy was convicted and sentenced to probation with various conditions and costs imposed by the trial court. The probation conditions included restri…
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QUINCE, Judge.
Patrick Scott Murphy appeals his judgment and sentence alleging the trial court erred in denying his motion to withdraw his plea and imposing certain conditions of probation and costs. We affirm the denial of the motion to withdraw his plea without further comment, but reverse and modify three conditions of probation and four cost items.
Probation condition four provides, “you will neither possess, carry, nor own any weapon or firearm without first securing the consent of your probation officer.” The portion of this condition that prohibits the carrying of weapons other than those enumerated in section 790.23, Florida Statutes (1993), must be stricken as it was not orally pronounced. Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995). To the extent this condition implies a felon may possess a prohibited weapon or firearm with the permission of his probation officer, it must be stricken. Id. at 903.
We also strike that portion of condition seven prohibiting the use of intoxicants to excess. This is a special condition of probation requiring an oral pronouncement. Tomlinson v. State, 645 So. 2d 1 (Fla.2d DCA 1994). Additionally, those portions of condition thirteen which require Murphy to pay for the evaluation and treatment of any alcohol or drug problem are stricken. This special condition of probation was also not orally pronounced at sentencing. Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994).
Lastly, we strike the following costs items: $12.00 to First Step, Inc.; $125.00 in attorney’s fees and costs; $300.00 in an unnumbered special probation condition; and payment of any debt due and owing to the state. In Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995), we stated a defendant must be given notice and an opportunity to be heard before imposition of discretionary costs. All the above discretionary items were imposed without notice or opportunity to object; therefore, they are stricken. Additionally, the $300.00 item has no reference to any statutory authority. These costs may be reimposed on remand after notice and an opportunity to be heard.
Affirmed in part; reversed and remanded in part.
FRANK, A.C.J., and LAZZARA, J., concur.
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Cited By
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Caton v. State, 862 So. 2d 901 (Fla. 2d DCA 2003)…court provided no statutory reference for the imposition of this cost. On remand, the trial court may impose this cost after appropriate notice and an opportunity to be heard. See Miller v. State, 679 So. 2d 1186 (Fla. 2d DCA 1996); Murphy v. State, 666 So. 2d 182 (Fla. 2d DCA 1995). Reversed and remanded with directions. CASANUEVA and CANADY, JJ., concur.…
Authorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Guinn v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)