ALVIN DEON WALLACE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a special condition of probation requiring payment for drug testing must be orally pronounced at sentencing and cannot be imposed if not.
The appellant was convicted and sentenced for robbery, shooting into a dwelling, and aggravated assault. Certain probation conditions were challenged …
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CAMPBELL, Acting Chief Judge.
Appellant, Alvin Deon Wallace, challenges his judgment and sentence for robbery, shooting into a dwelling and aggravated assault. We affirm the denial of appellant’s motion to suppress and also his conviction and sentence. We find error, however, in the imposition of that portion of probation condition eight requiring appellant to pay for alcohol or drug testing.
Appellant contends that the following conditions of probation must be stricken because they were not orally pronounced at sentencing:
3. You will not possess, carry or own any weapons, firearms, or destructive devices.
5. You will not use intoxicants to excess. You will not visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.
6. You will work faithfully at suitable employment. You will report to your employer your supervision status.
8. You will submit to and pay for random testing as directed by the supervising officer or professional staff of the treatment center where you are receiving treatment to determine the presence of alcohol or controlled substances.
We affirm the imposition of conditions three, five and six since they are general conditions that are substantially the same as conditions four, seven and eight of the form probation order set forth in Florida Rule of Criminal Procedure 3.986(e), of which appellant had constructive notice prior to sentencing. State v. Hart, 668 So. 2d 589 (Fla.1996). The state concedes that the portion of probation condition eight which requires appellant to pay for random drug testing is a special condition of probation that must be orally pronounced at sentencing. Because it was not orally pronounced in this case, it is stricken. See Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994).
SCHOONOVER and LAZZARA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Chuck Junior Williams, 712 So. 2d 762 (Fla. 1998)…t relied on precedent from this Court and its own previous decisions to hold that requiring a defendant to pay for alcohol or drug testing is a special condition of probation. Id. (citing Curry v. State, 682 So. 2d 1091 (Fla.1996); Wallace v. State, 682 So. 2d 1139 (Fla. 2d DCA 1996); Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)). The State, however, argued that none of these precedent eases addressed section 948.09(6), Florida Statutes (1995),3 which authorizes the Department of Corrections to require…
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Huff v. State, 700 So. 2d 787 (Fla. 2d DCA 1997)…encing that he would be required to pay for the testing. This court has held that requiring a defendant to pay for either alcohol or drug testing is a special condition of probation which must be announced at sentencing. See, e.g., Wallace v. State, 682 So. 2d 1139 (Fla. 2d DCA 1996) (drug testing); Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995) (alcohol testing). The State in this case has pointed out, however, that section 948.09(6), Florida Statutes (1995), provides that a defendant on supervision may…
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Chuck Junior Williams v. State, 700 So. 2d 750 (Fla. 2d DCA 1997)…ncing that he would b.e required to pay for the testing. This court has held that requiring a defendant to pay for either alcohol or drug testing is a special condition of probation which must be announced at sentencing. See, e.g., Wallace v. State, 682 So. 2d 1139 (Fla. 2d DCA 1996) (drug testing); Malone v. State, 652 So. 2d 902 (Fla. 2d DCA 1995) (alcohol testing). The State in this ease has pointed out, however, that section 948.09(6), Florida Statutes (1995), provides that a defendant on supervision may…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)