KENNETH NEKIO WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1997-01-08
No. 94-04131
FRANK, A.C.J., and WHATLEY, J., concur.
686 So. 2d 733 Florida District Court of Appeal, Second District (1997) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court affirmed the judgment and sentences for armed robbery but reversed and remanded for modification of certain probation conditions, costs, and attorney's fees.


Headnotes

[1] A special condition of probation that is not orally pronounced at sentencing must be stricken.

[2] A trial court must modify a probation condition requiring faithful employment to include the phrase "insofar as may be possible."

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

Facts & Procedural History

Appellant was convicted of armed robbery and appealed his judgment, sentences, and various probation conditions, costs, and fines. The appeal also cha…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Kenneth Neldo Washington appeals his judgment and sentences for two counts of armed robbery with a firearm, arguing that there was insufficient evidence to convict him as a principal to armed robbery, there were evidentiary errors, and the trial court erred in imposing certain conditions of probation, costs, and hens. We affirm the judgment and sentences. We reverse the order on the attorney’s fee hen, strike certain conditions of probation and costs, and remand for modification of one condition of probation and for corrections to certain costs.

Probation condition (3) stated, “You will not possess, carry or own any weapons, firearms, or destructive devices.” We strike that portion of condition (3) referring to weapons and destructive devices because it is a special condition of probation that was not pronounced orahy. See Callaway v. State, 658 So. 2d 593 (Fla. 2d DCA 1995).

Condition (6) provides: “You will work faithfully at suitable employment. You will report to your employer your supervision status.” We uphold that condition of probation but, on remand, order the trial court to insert the phrase “insofar as may be possible.” See Godley v. State, 659 So. 2d 447 (Fla. 2d DCA 1995); Bristol v. State, 667 So. 2d 486 (Fla. 2d DCA 1996).

We strike those portions of probation conditions (8) and (20) requiring Washington to pay for testing and treatment for alcohol or controlled substances because they are special conditions which were not pronounced orahy. See Jacob v. State, 651 So. 2d 147 (Fla. 2d DCA 1995).

Condition (18) provides: “You shah not (consume any alcohol/illegal drugs) (be in possession of alcohol or illegal drugs) (associate with persons who use alcohol or illegal drugs) (frequent places where alcohol is the main source of business or illegal drugs are used).” We strike the reference to alcohol. See Callaway.

Condition (31) provides: “No early termination consideration.” We strike that condition. See Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993).

The probation order contained the following costs, fines, and attorney fee assessment:

(1) $20 costs pursuant to section 960.20, Florida Statutes (1993), to be paid to the crimes compensation fund. The statute provides for a $50 mandatory amount; however, the trial court only imposed $20. Upon remand, the order must be corrected to reflect $50.

(2) $2 pursuant to section 943.25(8), Florida Statutes (1993). Subsection (8) does not authorize discretionary assessment of costs; however, subsection (13) does. In any event, we strike that cost because it is discretionary and was not pronounced orahy. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995) (en banc).

(3) $290 additional costs pursuant to section 27.3455(1), Florida Statutes (1993). That statute mandates a statutory amount of $200, therefore, under Reyes, no oral pronouncement is required. However, we strike the additional $90.

(4) $300 fine pursuant to section 775.0835, Florida Statutes (1993). That fine is discretionary and can only be imposed upon proper notice and announcement of the statutorily required findings. See Reyes. Here, the trial court did announce the imposition of a $300 fine; however, the trial court did not cite statutory authority or make the appropriate findings. We, therefore, strike the $300 fine and the $15 surcharge.

Finally, the probation form attached to the judgment reflects at paragraph 28 a fine and cost of $615, which appears to be a total of ah the fines assessed in the other orders. On remand, the trial court should correct that order to reflect the proper amount.

As to attorney’s fees, the state concedes it was improper for the trial court to assess an indeterminate amount of attorney’s fees. See Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992); Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986). On remand, the trial court may assess an amount of attorney’s fees after proper notice and an opportunity to contest the amount of the fees. Bourque.

We affirm the judgment and sentences. We strike probation condition (31) and portions of conditions (3), (8), (18), and (20). We direct the trial court to modify probation condition (6) to include the phrase “insofar as may be possible.” We strike the $2 cost imposed pursuant to section 943.25(8) and the additional $90 cost imposed pursuant to section 27.3455(1). On remand, the trial court shall correct the cost imposed pursuant to section 960.20 to reflect $50. Finally, we reverse the attorney fee assessment. On remand, the trial court may again assess attorney fees after proper notice and hearing.

FRANK, A.C.J., and WHATLEY, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Brown v. State, 697 So. 2d 928 (Fla. 2d DCA 1997)
    …gal source of business are not illegal activities. Furthermore, these activities are not proscribed in the form order of probation found in Florida Rule of Criminal Procedure 3.986(e). Hart. Thus, based on Hart, and as we did in Washington v. State, 686 So. 2d 733, 734 (Fla. 2d DCA 1997), we strike the references to alcohol. We turn now to Condition (19) which presents us with a special problem. Condition (19) requires the appellant to submit to a warrantless search of his person, premises or vehicle by his…
  • Robinson v. State, 894 So. 2d 1084 (Fla. 2d DCA 2005)
    …ually pronounced during the sentencing hearing, the fines are improper because the court did not cite statutory authority and the reference to section 773.083 in the final judgment does not support the imposition of the fines.1 Washington v. State, 686 So. 2d 733, 734 (Fla. 2d DCA 1997); Williams v. State, 674 So. 2d 885, 886 (Fla. 2d DCA 1996); Reyes, 655 So. 2d at 116. Robinson preserved his challenge to these costs and fines for review by filing a timely motion to correct sentencing error pursuant to Flor…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw