ANTHONY JAMES HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Holmes was convicted of cocaine possession and challenged his conviction based on insufficient circumstantial evidence, as well as certain probation conditions imposed without oral pronouncement at sentencing. The appellate court affirmed the conviction and modified the probation conditions, striking those not orally announced while preserving general conditions and those provided statutory notice.
The court affirmed the conviction on the constructive possession challenge. Regarding probation conditions, the court affirmed general conditions (intoxicants, employment, and weapons excluding destructive devices) that need not be orally pronounced, but struck conditions relating to alcohol evaluation, payment for evaluation/treatment/testing that were not orally ordered, while affirming random alcohol testing as provided by statute.
[1] General conditions of probation need not be orally pronounced at sentencing.
[2] A portion of a weapons condition of probation referring to destructive devices may be stricken.
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Join FLexlaw to unlock all legal intelligence“We affirm condition 5, the intoxicant condition, and condition 6, the employment condition, because they are general conditions of probation that need not be orally pronounced.”
Establishes the legal principle that general probation conditions do not require oral pronouncement at sentencing
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Join FLexlaw to unlock all legal intelligenceA jury found Anthony Holmes guilty of possession of cocaine. At sentencing, the trial court imposed various probation conditions, including conditions…
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RYDER, Acting Chief Judge.
A jury found Anthony Holmes guilty of possession of cocaine. He challenges his conviction on the grounds that the circumstantial evidence did not support his constructive possession of the drug. We affirm on this point without discussion.
Holmes also seeks review of certain conditions of his probation on the basis that they were not announced at sentencing. We affirm condition 5, the intoxicant condition, and condition 6, the employment condition, because they are general conditions of probation that need not be orally pronounced. State v. Hart, 668 So. 2d 589 (Fla.1996). We strike the portion of condition 3, the weapons condition, that refers to destructive devices. Luster v. State, 658 So. 2d 1129 (Fla. 2d DCA 1995). The rest of condition 3 is affirmed as a general condition. Hart. At the sentencing hearing, the lower court ordered that Holmes be evaluated for drug use and be subject to random drug testing, but it did not state that he was required to pay for the evaluation or tests. It did not orally order evaluation for alcohol use. Accordingly, we strike the portions of conditions 18 and 20 relating to alcohol, and the portions of conditions 8 and 20 requiring Holmes to pay for evaluation, treatment or testing. Bristol v. State, 667 So. 2d 486 (Fla. 2d DCA 1996). We affirm the portion of condition 8 requiring Holmes to submit to random alcohol testing because section 948.03(l)(j)l., Florida Statutes (1993), provides notice of its imposition. See Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995).
We affirm the conviction and remand to the trial court to modify the written order of probation in accordance with this opinion.
BLUE and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Weekfall v. State, 686 So. 2d 618 (Fla. 2d DCA 1996)…tes: “You will not possess, carry or own any weapons, firearms, or destructive devices.” That portion prohibiting Weekfall from possessing, carrying, or owning destructive devices must be struck because it was not pronounced orally. Holmes v. State, 675 So. 2d 995 (Fla. 2d DCA 1996); Laster v. State, 658 So. 2d 1129 (Fla. 2d DCA 1995). Probation condition (6) states: “You will work faithfully at suitable employment. You will report to your employer your supervision status.” This condition is part of conditi…
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Baker v. State, 696 So. 2d 830 (Fla. 2d DCA 1997)…convictions and terms of probation imposed for sale of cocaine and possession of cocaine with intent to sell. We strike the part of condition three of the probation order that prohibits Baker from carrying “destructive devices.” See Holmes v. State, 675 So. 2d 995 (Fla. 2d DCA 1996). We also strike the $100 cost imposed for an FDLE lab fee. Although the state requested this cost at the sentencing hearing, it offered no documentation to support the fee, and the trial court did not find that Mr. Baker had the a…
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Guinn v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)
- Bristol v. State, 667 So. 2d 486 (Fla. 2d DCA 1996)
- Laster v. State, 658 So. 2d 1129 (Fla. 2d DCA 1995)