CHARLES A. NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1996-03-20
No. 95-0679
GLICKSTEIN, WARNER and KLEIN, JJ., concur.
669 So. 2d 1145 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 5 cases

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Synopsis

Charles Nelson appealed his sentencing for arson, challenging the trial court's imposition of an indefinite probation restitution center placement, the improper inclusion of a nolle prossed charge in the sentencing scoresheet, and certain probation conditions. The appellate court affirmed the 30-month incarceration sentence but reversed the indefinite restitution center placement and corrected the sentencing guidelines scoresheet.


Holding

The court reversed the indefinite restitution center placement, limiting it to 9.1 months upon remand; reversed the improper scoring of the nolle prossed grand theft and recalculated the sentencing guidelines range; declined to reverse the alcohol consumption prohibition due to lack of objection below but requested the trial court reconsider it on remand; and affirmed the validity of the general probation condition regarding visiting places where intoxicants are dispensed, though recommending amendment to require 'knowing' visits. The 30-month incarceration sentence was affirmed as within the corrected guidelines range.


Headnotes

[1] Placement in a probation restitution center may not exceed 364 days.

[2] A nolle prossed offense may not be scored as an "additional offense" for sentencing guideline purposes.

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Key Quotes

“Placement in a probation restitution center may not exceed 364 days. § 948.03(7)(c), Fla.Stat. (1993); Holmes v. State, 645 So.2d 600 (Fla. 4th DCA 1994).”

Establishes the statutory limit on restitution center placement and forms the basis for reversing the indefinite placement.

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Facts & Procedural History

Nelson pleaded guilty to arson and the grand theft charge was nolle prossed. Despite the nolle prosequi, the grand theft was incorrectly scored as an …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We affirm appellant’s sentence in part, reverse in part and remand.

Appellant was charged with arson and grand theft. He pled guilty to the arson and the grand theft was nolle prossed. Nonetheless, the guidelines scoresheet listed the grand theft as an “additional offense.” Appellant was adjudicated guilty of arson and sentenced to 30 months state prison, followed by 12 years probation. Appellant was ordered to pay $11,695 in restitution to State Farm, $255 in court costs, and $200 in public defender fees. As special conditions of probation, appellant was required to have a mental health and substance abuse evaluation and not to consume any alcoholic beverages. A further condition of appellant’s probation was placement in a probation restitution center “until a suitable level of repayment has been made.”

Appellant first contends, and the state concedes, that the trial court erred in committing appellant to the probation restitution center for an indefinite period of time. Placement in a probation restitution center may not exceed 364 days. § 948.03(7)(c), Fla.Stat. (1993); Holmes v. State, 645 So. 2d 600 (Fla. 4th DCA 1994).

Appellant next contends, and the state again concedes, that the trial court erred in scoring the nolle prossed grand theft as an “additional offense.” Appellant received 1.2 points for the grand theft. As appellant points out, these points affect the maximum and minimum sentences that appellant could receive. With the incorrect scoresheet used by the court, appellant’s maximum and minimum were 40.6 and 24.3 months, respectively. With the correct scoresheet, appellant’s maximum and minimum are 39.1 and 23.4 months, respectively.

Appellant does not seek to reverse the 30 month DOC incarceration that was imposed, which is within the corrected range. Rather, appellant seeks resentencing to limit his placement in the restitution center to 9.1 months, which is what remains when the 30 month DOC sentence is subtracted from the corrected maximum of 39.1 months. See Peterson v. State, 645 So. 2d 1028, 1029 (Fla. 4th DCA 1994) (“Mandatory residency at a probation and restitution center, even as a condition of probation, is ‘incarceration’ -within the meaning of the sentencing guidelines.”). On remand, appellant’s placement in the probation restitution center may not exceed 9.1 months.

Appellant next challenges the special probation condition prohibiting him from consuming any alcoholic beverages. The state does not dispute that this condition is invalid, but maintains that this issue was waived by appellant’s failure to object to imposition of the condition.

Due to appellant’s failure to object to the imposition of this condition, this court need not review this issue or reverse this otherwise invalid condition. However, since this cause otherwise requires remand, the trial court is requested to reconsider this special condition.

Appellant further complains that “the condition that appellant is prohibited from visiting places where intoxicants are dispensed or used is outrageous.” This condition was not imposed orally, but was included as a general condition on the judgment. Contrary to what appellant asserts, the condition prohibits appellant from visiting places “where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.” Since this is a general condition of probation, rather than a special condition of probation, see State v. Hart, 668 So. 2d 589 (Fla.1996), the requirements of Biller v. State, 618 So. 2d 734 (Fla.1993), and Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979), are not applicable. See Biller, 618 So. 2d at 735 n. 1. Nonetheless, this general condition clearly would not be invalid under the Biller/Rodriguez criteria if they were applicable. In sum, this condition is not “outrageous” and appellant has not demonstrated any error regarding this condition. Nonetheless, we suggest that upon remand the trial court amend this condition to reflect that appellant may not “knowingly visit” such prohibited places. This is consistent with the recently adopted language of section 948.03(10)(m), Florida Statutes (1995).

Finally, there was no error in the imposition of fees and costs.

GLICKSTEIN, WARNER and KLEIN, JJ., concur.


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Citator

Cited By

  • Roberdd Douchard v. State, 357 So. 3d 142 (Fla. 4th DCA 2023)
    …e intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.” He relies on Sandoval v. State, 337 So. 3d 5 (Fla 4th DCA 2022), which remanded a probation order to include that term. Id. at 7; see also Nelson v. State, 669 So. 2d 1145, 1147 (Fla. 4th DCA 1996). Nelson pointed out that the general condition of probation in section 948.03(1)(m), Florida Statutes (1995), included the word “knowingly.” See § 948.03(1)(n), Fla. Stat. (2022) (stating “[t]he probationer or community c…
  • Sandoval v. State (Fla. 4th DCA 2022)
    …s provision with the standard probation condition would require the defendant’s knowledge, we suggest upon remand the trial court amend the condition to reflect the defendant may not “knowingly visit” such prohibited places. See Nelson v. State, 669 So. 2d 1145, 1147 (Fla. 4th DCA 1996). We have reviewed the remaining challenged conditions.1 We find no error in the court’s imposition of the standard conditions or with its explicit clarification of some of them. We therefore affirm on the remaining…
  • Marquis v. State (Fla. 4th DCA 2022)
    …8.03(1)(n)’s knowledge element in a probation order is not necessarily error, we have remanded suggesting that the trial court amend the condition “to reflect that appellant may not ‘knowingly visit’ such prohibited places.” See Nelson v. State, 669 So. 2d 1145, 1147 (Fla. 4th DCA 1996) (omitting the word “knowingly” was not error but remanding to amend the condition); Sandoval, 47 Fla. L. Weekly at D442 (suggesting upon remand the trial court amend the condition to reflect the defendant may not “knowi…

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