STEPHEN J. PENTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Penty appealed his probation conditions and costs imposed for aggravated assault. The appellate court struck two probation conditions not pronounced at sentencing, modified another, and remanded the case regarding public defender lien costs for which Penty was not advised of his right to contest.
The court struck the drug/alcohol evaluation and treatment condition and the alcohol prohibition condition because they were not pronounced at sentencing. The court modified the employment condition to include the phrase 'insofar as may be possible.' The court upheld the random urinalysis condition as properly announced. The court remanded regarding the public defender lien to allow Penty an opportunity to contest the amount after proper notice and hearing, though mandatory costs need not be pronounced at sentencing.
[1] A special condition of probation that is not pronounced at sentencing must be stricken.
[2] A condition prohibiting the consumption of alcohol, if not pronounced at sentencing, must be stricken.
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Join FLexlaw to unlock all legal intelligence“We strike the condition requiring him to pay for evaluation and treatment for drug or alcohol abuse because it is a special condition of probation which was not pronounced at sentencing.”
Establishes the core holding that special probation conditions must be pronounced at sentencing to be valid.
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Join FLexlaw to unlock all legal intelligenceStephen Penty was sentenced for aggravated assault and received probation with various conditions and costs imposed. The trial court imposed condition…
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PATTERSON, J.
Stephen Penty challenges certain probation conditions and costs imposed upon him as part of his sentence for aggravated assault. We strike the condition requiring him to pay for evaluation and treatment for drug or alcohol abuse because it is a special condition of probation which was not pronounced at sentencing. See Fennell v. State, 694 So. 2d 873 (Fla. 2d DCA 1997). We also strike the condition prohibiting Penty from consuming alcohol because it was not pronounced at sentencing. See Fennell, 694 So. 2d at 874. The condition requiring Penty to work faithfully at suitable employment must be modified to add the phrase “insofar as may be possible.” See Washington v. State, 685 So. 2d 858 (Fla. 2d DCA 1996); Godley v. State, 659 So. 2d 447 (Fla. 2d DCA 1995).
Penty’s argument that the trial court failed to announce the condition requiring him to pay for random testing for the presence of drugs or alcohol has no merit. The trial court stated at sentencing that Penty was to submit to “random urinalysis at the defendant’s expense.”
Penty correctly argues that the trial court erred in failing to advise him of his right to contest the amount of the public defender’s lien. Therefore, we remand this case to the trial court to give Penty thirty days from the date of this mandate to file an objection in the trial court. If he files an objection, the cost must be stricken. The cost may be reimposed with proper notice and a hearing. See Fla.R.Crim.P. 3.720(d)(1); Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992). The other costs that Penty claims were imposed without notice are all mandatory and need not be pronounced at sentencing. Further, as the State points out, Penty agreed to pay up to $800 in costs in his plea agreement.
Affirmed in part and remanded; certain probation conditions stricken or modified.
CAMPBELL, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bourque v. State, 595 So. 2d 222 (Fla. 2d DCA 1992)
- Washington v. State, 685 So. 2d 858 (Fla. 2d DCA 1996)
- Godley v. State, 659 So. 2d 447 (Fla. 2d DCA 1995)
- Fennell v. State, 694 So. 2d 873 (Fla. 2d DCA 1997)