DENNIS LYNN HUFF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dennis Lynn Huff appealed his convictions and sentence, raising six issues. The appellate court affirmed the convictions but reversed portions of the sentencing order, striking a discretionary fine that was not orally pronounced and a probation condition requiring payment for drug testing that lacked proper notice.
The court affirmed Huff's convictions but reversed the sentencing order in part. The discretionary fine of $44.77 was stricken because it was not orally pronounced at sentencing. The probation condition requiring payment for drug testing was stricken because it constitutes a special condition of probation requiring oral announcement at sentencing, not a general condition under section 948.09(6).
[1] A discretionary fine imposed pursuant to section 775.083, Florida Statutes (1995), must be orally pronounced by the trial court.
[2] A condition of probation requiring a defendant to pay for drug testing is a special condition that must be orally announced at sentencing.
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“Huff correctly contends that the trial court failed to orally pronounce the discretionary fine of $44.77, imposed pursuant to section 775.083, Florida Statutes (1995).”
Establishes the requirement that discretionary fines must be orally pronounced at sentencing
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Join FLexlaw to unlock all legal intelligenceHuff was convicted and sentenced to probation with various conditions. The trial court imposed a discretionary fine of $44.77 pursuant to section 775.…
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PER CURIAM.
In this appeal, the defendant, Dennis Lynn Huff, raises six issues. We affirm the convictions without discussion, but reverse some portions of the sentencing order. Huff correctly contends that the trial court failed to orally pronounce the discretionary fine of $44.77, imposed pursuant to section 775.083, Florida Statutes (1995). See Price v. State, 697 So. 2d 937 (Fla. 2d DCA 1997); Anderson v. State, 22 Fla. L. Weekly D1796, — So. 2d —, 1997 WL 400340 (Fla. 2d DCA July 18,1997). Therefore, we strike this discretionary fine.
As to condition eight dealing with drug and alcohol testing and treatment, Huff contends that he was given no notice at sentencing 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 be required by the Department of Corrections to pay for drug urinalysis and that the failure to pay may be considered a ground for revocation by the court. This provision supports a conclusion that the probation condition requiring a defendant to pay for drug testing is a general condition that need not be orally announced. See State v. Hart, 668 So. 2d 589 (Fla.1996). Because both this court and the Florida Supreme Court have stated otherwise, see Curry v. State, 682 So. 2d 1091 (Fla.1996), we adhere to those cases and hold that requiring a defendant to pay for drug testing is a special condition of probation. Accordingly, we strike this special condition of probation. As we did in Williams v. State, 700 So. 2d 750 (Fla. 2d DCA 1997), we certify the following question to the Florida Supreme Court:
SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT?
As to the remaining issues, we find they either lack merit or were not preserved for appellate review. Therefore, we affirm the judgment and sentence in all other respects.
. Affirmed in part, reversed in part and certain conditions of probation stricken.
BLUE, A.C.J., and FULMER and WHATLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Repoleon Porchia v. State, 705 So. 2d 1050 (Fla. 5th DCA 1998)…fied the question whether requiring the probationer to pay for random drug testing is actually a general condition or rather a special condition that requires oral announcement. See Williams v. State, 700 So. 2d 750 (Fla. 2d DCA 1997); Huffv. State, 700 So. 2d 787 (Fla. 2d DCA 1997); Smith v. State, 702 So. 2d 1305 (Fla. 2d DCA 1997). We join the Second District Court of Appeal in certifying the following question to the Florida Supreme Court as one of great public importance: SHOULD THE REQUIREMENT THAT A…
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Guinn v. State, 652 So. 2d 902 (Fla. 2d DCA 1995)
- Curry v. State, 682 So. 2d 1091 (Fla. 1996)
- Cook v. State, 700 So. 2d 750 (Fla. 2d DCA 1997)
- Wallace v. State, 682 So. 2d 1139 (Fla. 2d DCA 1996)
- Price v. State, 697 So. 2d 937 (Fla. 2d DCA 1997)
- Miran Lawson v. State, 697 So. 2d 937 (Fla. 2d DCA 1997)