FRANK JONES, IV, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Jones IV appealed his conviction and sentence following a guilty plea. The Florida Second District Court of Appeal affirmed the convictions but reversed and remanded to correct improper probation conditions and certain costs imposed without proper oral pronouncement.
The court affirmed the convictions but found error in the imposition of certain probation conditions and costs. Probation condition 5's prohibition on excessive intoxicants must be stricken for failure to announce at sentencing, though the remainder of condition 5 is valid. Probation condition 33 must be stricken entirely as it impermissibly divests the Department of Corrections of its authority to recommend early probation termination. The $2.00 discretionary cost and $33.00 cost/fine must be stricken for lack of oral pronouncement, but the $253.00 in mandatory costs and the public defender's fee are valid.
[1] A probation condition that is not orally announced at sentencing must be stricken.
[2] A trial court cannot divest the Department of Corrections of its statutory authority to recommend early termination of probation.
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Join FLexlaw to unlock all legal intelligence“a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer”
Establishes that probation condition 33 impermissibly divests the circuit court of statutory authority to recommend early probation termination
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Join FLexlaw to unlock all legal intelligenceFrank Jones IV entered a guilty plea and received a conviction with a sentence that included multiple probation conditions and costs totaling $288.00.…
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FRANK, Acting Chief Judge.
Frank Jones, IV, challenges his judgment and sentence following a guilty plea. After a review of the record in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the appellant’s convictions. We find, however, that the trial court erred in imposition of certain costs and probation conditions.
We strike that portion of probation condition 5 prohibiting the excessive use of intoxicants as a special condition that the trial court failed to announce at sentencing. Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995). The remainder of condition 5 is valid as a more precise definition of a general prohibition that needs no oral pronouncement. Evans v. State, 653 So. 2d 1103 (Fla. 2d DCA 1995).
Jones has also challenged probation condition 33, which states, “No early termination of probation [typed]. Sex Offender Program must participate [hand written].” Although the intention of this condition may have been to proscribe termination before completion of a sex offender program, it appears calculated to divest the Department of Corrections of its authority to recommend early termination of probation. § 948.04(3), Fla.Stat. (1998). This is impermissible, and, as stated in Baker v. State, 619 So. 2d 411, 412 (Fla. 2d DCA 1993), “a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. § 948.05, Fla.Stat. (1991).” Thus, probation condition 33 must be stricken.
Of the $288.00 in costs imposed, $253.00 are mandatory and will not be stricken. The discretionary $2.00 cost pursuant to section 943.25(13) and the $33.00 “cost/fine” will be stricken because the statutory authority for those costs was not orally announced. This action is without prejudice to the state to seek reimposition of the costs with citation of statutory authority and adequate documentation. Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). There was no error in imposing the public defender’s fee, which was orally announced at sentencing. A determination of the appellant’s ability to pay need not be made until collection is enforced. State v. Beasley, 580 So. 2d 139 (Fla.1991).
Reversed and remanded for correction of sentence and probation order. PARKER and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998)…ossession, or ownership of a firearm for the time period defendant is on probation. Defendant next argues that the prohibition against early termination without the consent of the State Attorney is an illegal condition of probation. Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995) to support this position. In Jones, the court, pursuant to a negotiated plea, imposed a special condition that there be “no early termination of probation.” This provision was found to divest the Department of Corrections of its a…
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Washington v. State, 686 So. 2d 733 (Fla. 2d DCA 1997)…frequent places where alcohol is the main source of business or illegal drugs are used).” We strike the reference to alcohol. See Callaway. Condition (31) provides: “No early termination consideration.” We strike that condition. See Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993). The probation order contained the following costs, fines, and attorney fee assessment: (1) $20 costs pursuant to section 960.20, Florida Statutes (1993), to be paid to the crim…
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State v. LaFAVE, 113 So. 3d 31 (Fla. 2d DCA 2012)…ions prevent future courts from exercising discretion to discharge defendants pursuant to section 948.05. See, e.g., Murphy v. State, 976 So. 2d 1242, 1243 (Fla. 2d DCA 2008); Swedish v. State, 724 So. 2d 640, 640 (Fla. 2d DCA 1999); Jones v. State, 666 So. 2d 191, 192 (Fla. 2d DCA 1995); Baker v. State, 619 So. 2d 411, 412 (Fla. 2d DCA 1993); see also Arriaga v. State, 666 So. 2d 949, 950 (Fla. 4th DCA 1996). However, a crucial distinguishing factor in the above-cited cases is that they do not involve negoti…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Henderson v. Henderson, 619 So. 2d 411 (Fla. 4th DCA 1993)
- Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995)
- Evans v. State, 653 So. 2d 1103 (Fla. 2d DCA 1995)
- Emmett William Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993)