KELLY POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelly Powell appealed the revocation of his probation, challenging the trial court's finding of willful violation and certain probation conditions. The appellate court affirmed the probation revocation but struck several probation conditions that were imposed without oral pronouncement or exceeded judicial authority.
The court affirmed the revocation of probation and conditions (4) and (7), but struck condition (13) requiring literacy/high school diploma, the portion of condition (12) requiring Powell to pay for drug and alcohol testing, and the 4% processing fee in condition (10), because these special conditions were not orally pronounced or exceeded judicial authority.
[1] A trial court may impose general conditions of probation without oral pronouncement if they are set forth in a statute.
[2] A special condition of probation that is not orally pronounced by the trial court must be stricken.
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Join FLexlaw to unlock all legal intelligence“We affirm the revocation of probation but strike certain conditions of probation.”
Establishes the overall disposition of the appeal—affirming the revocation while striking certain invalid conditions.
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Join FLexlaw to unlock all legal intelligenceKelly Powell was on probation and the trial court revoked it, finding he willfully violated probation. The trial court imposed various conditions of p…
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PER CURIAM.
Kelly Powell appeals the trial court order of revocation of probation, specifically arguing that the trial court erred in finding that Powell willfully violated probation and in imposing certain conditions of probation. We affirm the revocation of probation but strike certain conditions of probation.
We affirm conditions (4) and (7). See State v. Hart, 668 So. 2d 589 (Fla.1996). We strike that portion of probation condition (10) requiring a 4% processing fee for each payment of restitution, costs and/or fees. The imposition of this fee is discretionary and, according to Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995) (en banc), must be orally pronounced. Also, because section 945.31, Florida Statutes (1993), authorizes the Florida Department of Corrections to impose such a fee, we conclude that the trial court had no authority to do so. Cf. Kionka v. State, 660 So. 2d 419 (Fla. 4th DCA 1995) (any authority to exempt an individual from paying all or part of costs of supervision lies initially with the Department of Corrections).
That portion of condition (12) requiring Powell to submit to random testing is a general condition set forth in section 948.03(l)(j)l, Florida Statutes (1991); therefore, it may be imposed without oral pronouncement. See Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995). However, that por tion requiring Powell to pay for alcohol and drug testing is a special condition of probation which must be struck because it was not orally pronounced. See Malone; Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994).
Condition (13), requiring a good-faith effort to obtain either literacy skills or a high school diploma, is a special condition of probation, see Martin v. State, 659 So. 2d 479 (Fla. 2d DCA 1995), and must be struck because it was not orally pronounced.1 Nank.
We affirm the revocation of probation and conditions (4) and (7)'. We strike condition (13), that portion of condition (12) requiring Powell to pay for testing, and the 4% processing fee contained in condition (10).
SCHOONOVER, A.C.J., and PARKER and ALTENBERND, JJ., concur. . Chapter 92-310, Laws of Florida amended section 948.03 by adding subsection (8), now subsection (9), which authorizes trial court judges to impose such a condition. A statutorily authorized condition of probation may be included in a written probation order without oral pronouncement. Nank: However, that amendment is not applicable to Powell because he committed his offenses prior to July 6, 1992, the effective date of the amendment. See Ch. 92-310, § 23, Laws of Fla.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Houston v. State, 701 So. 2d 372 (Fla. 2d DCA 1997)…he reasoning in Malone and Curry v. State, 656 So. 2d 521 (Fla. 2d DCA 1995).7 On the other hand, we have refused to strike condition four on other occasions, citing to Hart. See Daughtry v. State, 681 So. 2d 740 (Fla. 2d DCA 1996); Powell v. State, 681 So. 2d 722 (Fla. 2d DCA 1996); Ringling v. State, 678 So. 2d 1339 (Fla. 2d DCA 1996). In the same period, the Fourth District has stricken a portion of this condition on one occasion and refused to strike it on two others. See Tory v. State, 686 So. 2d 689 (Fl…
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Jerry Banks v. State, 708 So. 2d 1034 (Fla. 2d DCA 1998)…State, 700 So. 2d 750 (Fla. 2d DCA 1997). We also strike condition 13 which requires Banks to make a good faith effort to obtain either literacy skills or a high school diploma, because this is a special condition of probation. See Powell v. State, 681 So. 2d 722 (Fla. 2d DCA 1996). Accordingly, we affirm Banks’ judgments and sentences, but we strike one cost and three probation conditions. PATTERSON, A.C.J., and WHATLEY and QUINCE, JJ., concur.…
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Sharee Dixon v. State, 304 So. 3d 20 (Fla. 4th DCA 2020)…, Florida Statutes (2016), the probation order imposes a separate 4% surcharge associated with an administrative processing fee for restitution payments, which the trial court neither orally stated nor was authorized to impose. See Powell v. State, 681 So. 2d 722, 722 (Fla. 2d DCA 1996). Accordingly, we remand for the trial court to strike these costs. Affirmed in part, reversed in part, and remanded with instructions. GROSS, CONNER and ARTAU, JJ., concur.…
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
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Guinn v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)
- Hi-Tech Mktg. Grp., Inc. v. Thiem, 659 So. 2d 479 (Fla. 4th DCA 1995)
- Kionka v. State, 660 So. 2d 419 (Fla. 4th DCA 1995)