KENNETH BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Burgess appealed his cocaine possession and delivery convictions, challenging certain probation conditions and costs imposed at sentencing. The court reversed the trial court's order converting mandatory costs to community service and struck certain probation conditions and costs that were not properly imposed.
The court held that probation conditions 15 and 16 were improperly imposed because they were not orally announced; the $15 Court Improvement Fund cost was erroneous under Reyes v. State; the $2 discretionary cost was improperly imposed without oral announcement; and the trial court erred in converting mandatory costs to community service hours. On remand, the trial court must determine if Burgess completed the community service and may reimpose costs except the $2 discretionary cost and Court Improvement Fund.
[1] Special conditions of probation that are not orally announced at sentencing must be stricken.
[2] A trial court errs in imposing a cost for the Court Improvement Fund without proper authorization.
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“probation conditions 15 and 16 are special conditions that were not orally announced at sentencing. Accordingly, we strike the conditions.”
Establishes that special probation conditions must be orally announced at sentencing
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Join FLexlaw to unlock all legal intelligenceBurgess was convicted of possession of cocaine and delivery of cocaine. At sentencing, the trial court imposed probation conditions 15 and 16 as speci…
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BLUE, Judge.
Kenneth Burgess appeals his convictions and sentences for possession of cocaine and delivery of cocaine. He challenges certain probation conditions and costs. We reverse.
Burgess argues, and the State concedes, that probation conditions 15 and 16 are special conditions that were not orally announced at sentencing. Accordingly, we strike the conditions. See State v. Hart, 668 So. 2d 589 (Fla.1996).
Burgess also challenges certain costs that were imposed as part of his sentence. The trial court imposed $270 in various itemized costs. Under Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995), the trial court erred in imposing $15 for the Court Improvement Fund. The court also erred in imposing a $2 discretionary cost under section 943.25(13), Florida Statutes (1993), without orally announcing it. Subsequent to sentencing but before the notice of appeal was filed, Burgess filed a motion to modify probation and convert the costs to forty hours of community service. The trial court granted this motion. The State argues on appeal that the trial court erred in converting mandatory costs to community service. “If probation is imposed as a portion of the sentence, monetary conditions may not be converted to community service hours.” Phaneufv. State, 655 So. 2d 1300, 1301 (Fla. 5th DCA 1995); quashed on other grounds, 665 So. 2d 1057 (Fla.1996). Therefore, we reverse the trial court’s order that converted mandatory costs to community service.
The case poses a double jeopardy problem if Burgess has completed all or part of his community service hours. See State v. Muoio, 438 So. 2d 160 (Fla. 2d DCA 1983) (although trial court was not authorized to impose community service in place of a mandatory fine, imposing the fine on remand would violate double jeopardy because defendant had completed community service hours). On remand, the trial court must determine whether Burgess has completed the community service hours. If not, the trial court may reimpose costs but in no event may the trial court reimpose the $2 discretionary cost or the court improvement fund.
Order modifying probation reversed; certain costs and probation conditions stricken; remanded.
SCHOONOVER, A.C.J., and FULMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- State v. Muoio, 438 So. 2d 160 (Fla. 2d DCA 1983)
- State v. Phaneuf, 665 So. 2d 1057 (Fla. 1996)
- State v. Jefferson, 665 So. 2d 1057 (Fla. 1996)
- Phaneuf v. State, 655 So. 2d 1300 (Fla. 5th DCA 1995)