REPOLEON PORCHIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that a condition requiring a probationer to pay for random drug tests is a special condition that must be orally announced, and stricken if not. The court also certified a question regarding this issue to the Florida Supreme Court.
Repoleon Porchia was convicted of robbery with a weapon and sentenced to prison and probation. He challenged three conditions of his probation, includ…
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.
Explore caselaw by topic → Browse General Conditions Of Probation cases and more on FLexlaw
THOMPSON, Judge.
We grant the state’s motion for rehearing filed pursuant to Florida Rule of Appellate Procedure 9.330(a) and substitute this opinion for the former opinion:
Repoleon Porchia was convicted of robbery with a weapon and sentenced to four years in prison followed by two years probation. Porchia challenges three conditions in the order of probation. We affirm except that we strike the provision requiring Porchia to pay for random drug tests.
Condition eight states, “You will work diligently at a lawful occupation, advise your employer of your Probation or Community Control status, and support any other dependents to the best of your ability, as directed by your Probation or Community Control Officer.” Porchia asserts this condition fails to consider possible economic conditions which could prevent him from obtaining or maintaining employment. In Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993), however, we approved a similarly-worded condition of probation. Requiring the defendant to work to the best of his ability immunizes him from penalty should he become unemployed for reasons beyond his control. See Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993).
Condition eleven requires Porchia to submit to random drug tests as directed by his probation officer and to pay for such tests. The provision for random drug testing is a general condition of probation and need not be orally announced. § 948.03(1)(k), Fla. Stat. (1995). However, the requirement that the defendant pay for the tests is a special condition which must be orally announced. Justice v. State, 674 So. 2d 123 (Fla.1996); Jackson v. State, 685 So. 2d 1386 (Fla. 5th DCA 1997). Because the trial court failed to do so, that provision is stricken and may not be reimposed. Justice. The state has pointed out that section 948.09(6), Florida Statutes (1995) appears to contain the requirement to pay for such testing and the Second District has certified 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 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?
The third condition Porchia challenges was not, in fact, imposed because he was not placed on drug offender probation.
JUDGMENT and SENTENCE AFFIRMED; PROBATION ORDER AFFIRMED AS MODIFIED.
GOSHORN and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Repoleon Porchia, 716 So. 2d 766 (Fla. 1998)…ENDANT 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? Porchia v. State, 705 So. 2d 1050, 1051 (Fla. 5th DCA 1998). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answered this question in State v. Williams, 712 So. 2d 762 (Fla.1998), by holding that the requirement that a defendant pay for drug testing is a special condition…
-
O'Connell v. State, 733 So. 2d 556 (Fla. 5th DCA 1999)…entences were rendered on March 26,1997. With regard to Condition 12, which requires O’Connell to pay for drug testing, this is a special condition which must be orally pronounced. See State v. Williams, 712 So. 2d 762 (Fla.1998); Porchia v. State, 705 So. 2d 1050 (Fla. 5th DCA), approved, 716 So. 2d 766 (Fla.1998). However, we have found no case which holds that failure of trial counsel to object to not orally pronouncing this condition amounts to ineffective assistance of trial counsel. In order to rise to…
-
Armstrong v. State, 896 So. 2d 866 (Fla. 5th DCA 2005)…t time in the written order imposing probation. The court’s failure to orally pronounce condition 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 section…
Authorities Cited
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)
- Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)
- Cook v. State, 700 So. 2d 750 (Fla. 2d DCA 1997)
- Jackson v. State, 685 So. 2d 1386 (Fla. 5th DCA 1997)
- Boynton v. State, 702 So. 2d 1305 (Fla. 3d DCA 1997)
- Huff v. State, 700 So. 2d 787 (Fla. 2d DCA 1997)