NATHANIEL HARRIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris appeals his conviction and sentences in an Anders proceeding. The appellate court affirms the convictions and sentences but reverses in part due to improper designations of the petit theft conviction as a first-degree misdemeanor (rather than second-degree) and removal of several probation conditions that were not orally pronounced.
The court affirms Harris's convictions but reverses the improper designation of his petit theft conviction as a first-degree misdemeanor (it should be second-degree) and reverses the inclusion of several special probation conditions that were not orally pronounced, including financial responsibility for testing, educational program requirements, alcohol abstention, and processing fees.
[1] A written judgment improperly designating a petit theft conviction as a first-degree misdemeanor must be corrected when the charging information did not allege facts to w…
[2] Special conditions of probation that were not orally pronounced in court must be stricken from the written order.
Previewing 2 of 4 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“The information in the instant case charged him with theft of currency valued at less than $300, which is a second-degree misdemeanor, but did not refer to any prior theft conviction to warrant reclassification as a first-degree misdemeanor.”
Establishes that the trial court erred in classifying the theft as first-degree when the charging document and facts supported only a second-degree misdemeanor.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarris was charged with theft of currency valued at less than $300, which constitutes a second-degree misdemeanor under Florida law. The trial court e…
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PER CURIAM.
We deny the state’s motion for rehearing but substitute this opinion for the earlier opinion filed on June 20,1997.
In this appeal conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm appellant’s convictions and sentences except as set forth below. Our independent review of the record discloses no reversible error other than the errors mentioned in the Anders brief.
One, appellant’s written judgment improperly designates his petit theft conviction as a first-degree misdemeanor. The information in the instant ease charged him with theft of currency valued at less than $300, which is a second-degree misdemeanor, but did not refer to any prior theft conviction to warrant reclassification as a first-degree misdemeanor. See § 812.014(3)(b), Fla. Stat. (1995); Lewellen v. State, 682 So. 2d 186 (Fla. 2d DCA 1996); Jenkins v. State, 617 So. 2d 836 (Fla. 4th DCA 1993). The trial court is directed to correct the judgment accordingly.
Two, the order of probation incorrectly contains several special conditions that were not orally pronounced. Condition 11 and special condition 19 require appellant to be financially responsible for any urinalysis, testing or substance abuse treatment. Further, special condition 15 requires him to enter into a probationers’ educational growth program and special condition 18 requires him to abstain totally from consuming alcohol. Finally, condition 12 requires him to pay a one-time $50 non-recurring processing fee and an accompanying 4%. surcharge in conjunction with administrative probation. Since none of these special conditions were orally pronounced, they must be stricken. See Gearhart v. State, 692 So. 2d 316 (Fla. 5th DCA 1997); Jackson v. State, 685 So. 2d 1386 (Fla. 5th DCA 1997).1 See also Justice v. State, 674 So. 2d 123 (Fla.1996).
AFFIRMED in part; REVERSED in part; and REMANDED.
DAUKSCH, COBB and ANTOON, JJ., concur. . We do, however, lake this opportunity to clarify the issue of the existence, vel non of statutory authority for the cost provision in condition 12. Section 948.001(1), Florida Statutes (1995) dealing with probation and community control does provide that the Department of Corrections "is authorized to collect an initial processing fee of up to $50.00 for each probationer reduced to administrative probation. Such offender is exempt from further payment for cost of supervision as required in s. 948.09.”
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Pagliuca v. State, 860 So. 2d 1095 (Fla. 5th DCA 2003)…ally pronounced at sentencing in order to be validly imposed. § 948.03(1), Fla. Stat. (2002); e.g., Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002). Since special condition nineteen was not orally pronounced, it must be stricken. Harris v. State, 698 So. 2d 343 (Fla. 5th DCA 1997). We strike the assessment of $250.00 costs of prosecution and remand to the trial court with directions that such costs may be reimposed only after the State produces the required documentation. Special condition nineteen is str…
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Armstrong v. State, 896 So. 2d 866 (Fla. 5th DCA 2005)…n 24 at sentencing requires us to strike the condition of payment for the drug tests and bar the reimposition after remand. See, e.g., Porchia v. State, 705 So. 2d 1050, 1051 (Fla. 5th DCA 1998), approved, 716 So. 2d 766 (Fla.1998); Harris v. State, 698 So. 2d 343 (Fla. 5th DCA 1997). We also vacate the above-described conditions 21, 22 and 23, but remand for reimposition of the costs if the requirements of sections 938.27(1) and 939.18 can be met. See, e.g., Pagliuca v. State, 860 So. 2d 1095 (Fla. 5th DCA 2…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Jackson v. State, 685 So. 2d 1386 (Fla. 5th DCA 1997)
- Lewellen v. State, 682 So. 2d 186 (Fla. 2d DCA 1996)
- Jenkins v. State, 617 So. 2d 836 (Fla. 4th DCA 1993)
- Hoffman v. Dickerson, 692 So. 2d 316 (Fla. 5th DCA 1997)
- Gearhart v. State, 692 So. 2d 316 (Fla. 5th DCA 1997)