MIGUEL ANGEL TORRES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Miguel Angel Torres appealed his convictions and sentence for burglary of a dwelling with battery, battery of a victim over 65, and grand theft. The court affirmed both battery convictions as separate offenses, corrected a mathematical error in the sentencing scoresheet, and struck an unpronounced special probation condition requiring the defendant to pay for drug testing.
A defendant may be convicted and sentenced for both offenses because each contains distinct elements not included in the other. The mathematical error in the sentencing scoresheet must be corrected by the trial court. The special probation condition requiring payment for alcohol or drug testing must be struck because it was not orally pronounced at sentencing, though the general condition allowing testing itself need not be pronounced.
[1] A defendant may be sentenced for both burglary of a dwelling with battery and battery of a victim over the age of 65 when each offense contains an element not present in…
[2] A mathematical error in a sentencing scoresheet, even if minor, requires correction by the trial court.
Previewing 2 of 6 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“Although both offenses require battery, each offense includes an additional element that the other does not. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).”
Establishes the legal standard for determining whether multiple convictions are permissible under the Blockburger test
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Join FLexlaw to unlock all legal intelligenceTorres committed burglary of a dwelling with battery, battery of a victim over age 65, and grand theft on November 15, 1995. He was sentenced on April…
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PER CURIAM.
Miguel Angel Torres appeals his sentence for burglary of a dwelling with an assault or battery, battery of a 'victim over the age of 65, and grand theft. We affirm Mr. Torres’ conviction for both burglary of a dwelling with battery and battery of a victim over the age of 65 because one offense is not a necessary lesser of the other. We also direct the trial court to correct a mathematical error in Mr. Torres’ sentence and strike a portion of his order of probation.
Mr. Torres argues that a defendant cannot be sentenced for both burglary of a dwelling with battery and for battery of a victim over the age of 65. We disagree. Although both offenses require battery, each offense includes an additional element that the other does not. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Burglary of a dwelling with battery requires the entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein. See § 810.02(2), Fla. Stat. (1995). Battery on a person 65 years of age or older requires that the battery be on a person 65 or older. See § 784.08, Fla. Stat. (1995). Because these elements are separate and not included in both offenses, we affirm both convictions.
Mr. Torres committed these offenses on November 15,1995, and was sentenced on April 17, 1996. The sentencing guidelines scoresheet listed the maximum amount of imprisonment as 65.62 months. Mr. Torres was sentenced to the maximum term of imprisonment, followed by 10 years of probation for count one, burglary of a dwelling with an assault or battery.1 The State, however, made a mathematical error in preparing the scoresheet. If properly calculated, the maximum term of imprisonment which Mr. Torres could receive without a departure sentence was 65.5 months. Although this error amounts to less than 4 days, we direct the trial court to correct the error in the sentence. The defendant need not be present for this purpose.
In addition, Mr. Torres argues that the trial court failed to pronounce orally condition A of his probation order at the sentencing hearing. Condition A states:
You will submit to urinalysis, breathalyzer or blood test at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine the possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer. In State v. Hart, 668 So. 2d 589, 592-93 (Fla.1996), the supreme court held that the order of probation form found in Florida Rule of Criminal Procedure 3.986 provides constructive notice of all general conditions of probation contained in that form. Therefore, conditions 1 through 11, described as “general conditions,” need not be orally pronounced. However, the “special” conditions of probation contained in that form still need to be pronounced at sentencing. Id. at 593. Condition A of Mr. Torres’ probation order is a special condition listed in the form order in rule 3.986. The first portion of condition A, stating that a probationer will submit to alcohol and drug testing, is a statutory, general condition of probation that need not be pronounced at sentencing. See Brock v. State, 688 So. 2d 909, 912 n. 4 (Fla.1997); § 948.03(k), Fla. Stat. (1995). The second portion of condition A, requiring a probationer to pay for either alcohol or drug testing, is a special condition that must be orally pronounced. See State v. Williams, 712 So. 2d 762 (Fla.1998); Smith v. State, 702 So. 2d 1305 (Fla. 2d DCA 1997). Because the trial court did not pronounce condition A at the sentencing hearing, we must strike the portion requiring Mr. Torres to pay for alcohol or drug testing. Affirmed in part, reversed in part, and remanded.
ALTENBERND, A.C.J., and BLUE and GREEN, JJ., concur. . Mr. Torres received a 5-year sentence for his additional offenses.
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…tion in Brock and found that because the condition is statutorily authorized, it does not have to be orally announced at the sentencing hearing. Brock, 688 So. 2d at 910-12 & n. 1; see § 948.03(l)(k)l., Florida Statutes (Supp.1996); Torres v. State, 712 So. 2d 1169, 1170 (Fla. 2d DCA 1998). We thus find that considering the nature of the claimed error, the absence of any qualitative effect on the sentencing process, and the absence of any quantitative effect on the sentence, the imposition of the condition of…
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Ladson v. State, 955 So. 2d 612 (Fla. 2d DCA 2007)…Williams, 712 So. 2d 762, 763 (Fla.1998). Such conditions have previously been stricken when challenged on appeal. See, e.g., Crowley v. State, 813 So. 2d 1065 (Fla. 2d DCA 2002); Miller v. State, 809 So. 2d 101 (Fla. 2d DCA 2002); Torres v. State, 712 So. 2d 1169 (Fla. 2d DCA 1998); Carter v. State, 787 So. 2d 193 (Fla. 1st DCA 2001). However, a defendant is able to raise an objection to such a condition by filing a motion pursuant to rule 3.800(b). Under this rule “a defendant has the opportunity to interp…
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Holm v. State, 784 So. 2d 1185 (Fla. 2d DCA 2001)…nied that motion. Holm correctly argues that the trial court erred in failing to orally pronounce the special condition of probation that he pay for random drug and alcohol testing. See State v. Williams, 712 So. 2d 762 (Fla.1998); Torres v. State, 712 So. 2d 1169 (Fla. 2d DCA 1998). Hence, we strike that portion of the condition requiring Holm to pay for alcohol or drug testing. Likewise, Holm correctly argues that the trial court erred in failing to give him an opportunity to object to the amount assessed f…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- State v. Chuck Junior Williams, 712 So. 2d 762 (Fla. 1998)
- Brock v. State, 688 So. 2d 909 (Fla. 1997)
- Boynton v. State, 702 So. 2d 1305 (Fla. 3d DCA 1997)