GREGORY MCCLOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory McClough appeals his sentence for cocaine trafficking, challenging two special conditions of probation regarding payment to a First Step Program and investigation costs. The appellate court strikes both conditions, finding the trial court lacked jurisdiction to impose the First Step payment and improperly delegated the determination of investigation cost payments to the probation officer without evidence of ability to pay.
The trial court lacked jurisdiction to require payment to the First Step Program, and the condition requiring payment of investigation costs in an amount to be determined by the probation officer was improper because trial courts cannot delegate to probation officers the responsibility of determining a defendant's ability to pay costs or the payment rate, and the defendant's ability to pay must be determined at the time of sentencing with supporting evidence.
[1] A trial court lacks jurisdiction to require a defendant to pay a specific amount to Volusia County's First Step Program.
[2] A trial court must orally pronounce all special conditions of probation at the time of sentencing.
Previewing 2 of 5 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“the trial court was required to orally pronounce special conditions of probation”
Establishes the procedural requirement that special probation conditions must be orally stated at sentencing
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Join FLexlaw to unlock all legal intelligenceMcClough was adjudicated guilty of trafficking in cocaine under Florida Statute § 893.135(1993). He was sentenced to five years in prison followed by …
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ANTOON, Judge.
Gregory McClough (defendant) appeals his sentence imposed after he was adjudicated guilty of trafficking in cocaine.1 We strike certain special conditions of the defendant’s probation, but in all other aspects, we affirm his sentence.
The defendant was sentenced to serve five years in prison followed by ten years probation. The defendant contests two special conditions of probation imposed by the court: (1) that he pay $120.00 to Volusia County’s First Step Program, and (2) that he pay “an amount to be determined” by his probation officer as restitution for the cost of investigation.
The defendant first challenges the requirement that he pay $120.00 to the Volu-sia First Step Program contending that the trial court erred by failing to orally pronounce this special condition at the time of sentencing. We agree that the trial court was required to orally pronounce special conditions of probation. See Land v. State, 605 So. 2d 599 (Fla. 5th DCA 1992). More important, however, is the fact that our court has ruled that the trial court lacks jurisdiction to require a defendant to make such a payment to First Step of Volusia County. Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994). Thus, this special condition of probation was improperly imposed.
The defendant next challenges the trial court’s direction that he pay the costs of investigation “in an amount to be determined by his probation officer.” We agree that this direction was improper because trial courts are not authorized to delegate to a probation officer the responsibility of determining a defendant’s ability to pay costs, and the rate of such payment. Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991). See also Larson v. State, 572 So. 2d 1368 (Fla.1991). Also, the ability of the defendant to pay such costs must be determined at the time of imposition. Here, the state presented no evidence to support its claim for costs, and the trial court made no inquiry into the defendant’s ability to pay such costs. See Thomas v. State, 625 So. 2d 962 (Fla. 5th DCA 1993). See also State v. Beasley, 580 So. 2d 139 (Fla.1991). Accordingly, the special conditions of probation requiring the defendant to pay $120.00 to First Step of Volusia County, and the costs of investigation are stricken. This matter is remanded for consideration of the proper imposition of investigation costs. Thomas v. State, 625 So. 2d 962 (Fla. 5th DCA1998).
REVERSED and REMANDED.
HARRIS and THOMPSON, JJ., concur. . § 893.135, Fla.Stat. (1993).
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Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 2003)…Statutes. See Cathcart v. State, 643 So. 2d 702 (Fla. 4th DCA 1994). Third, we strike that portion of the probation order directing appellant’s probation officer to determine appellant’s “ability to pay monetary obligations.” See McClough v. State, 669 So. 2d 1099, 1100 (Fla. 5th DCA 1996). Accordingly, appellant’s convictions are affirmed; her sentence as to count II (child abuse) is vacated, and several conditions of probation, as noted above, are struck; the cause is remanded for resen-tencing. AFFIRMED…
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Seders v. State, 700 So. 2d 126 (Fla. 2d DCA 1997)…ot by the court. We agree. “The establishment of a payment schedule for court costs is a judicial responsibility that cannot be delegated to a probation officer.” Haygood v. State, 687 So. 2d 318, 319 (Fla. 4th DCA 1997). See also McClough v. State, 669 So. 2d 1099 (Fla. 5th DCA 1996); Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993). Therefore, we conclude that the trial court erred by finding that Seders violated conditions J, L, T and U by failing to meet the payment schedule imposed by the probation offi…
Authorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Tibero v. State, 646 So. 2d 213 (Fla. 5th DCA 1994)
- Goshay v. State, 646 So. 2d 213 (Fla. 1st DCA 1994)
- Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991)
- Chance v. State, 625 So. 2d 962 (Fla. 5th DCA 1993)
- Weldon O. Carter v. James A. Hunt, M.D., 605 So. 2d 599 (Fla. 5th DCA 1992)