DAVID BENJAMIN BURCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Burch appealed his probation conditions, challenging three special conditions imposed in written order but not pronounced orally at sentencing: payment for drug and alcohol testing, a 4% surcharge on court payments, and a $1.00 monthly payment to First Step, Inc. The court reversed and remanded as to the first two conditions but affirmed the third as a statutory general condition of probation.
The court reversed and remanded as to the requirement that Burch pay for drug and alcohol testing and the 4% surcharge, holding these special conditions could not be imposed without oral pronouncement at sentencing. The court affirmed as to the $1.00 monthly First Step payment, holding it is a statutory general condition of probation that may be imposed in written order without prior oral announcement.
[1] A trial court may not impose a condition of probation in its written order that was not orally pronounced at sentencing, unless the condition is a statutory general condi…
[2] A requirement to pay for random drug and alcohol testing is a special condition of probation that must be orally pronounced at sentencing.
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Join FLexlaw to unlock all legal intelligence“None of these conditions were orally pronounced at sentencing.”
Establishes that the challenged probation conditions were not announced orally, which is critical to the distinction between special and general conditions.
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Join FLexlaw to unlock all legal intelligenceBurch was sentenced to probation with conditions set forth in a written order. Three specific conditions were included in the written order but were n…
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PER CURIAM.
Appellant, David Burch, claims error as to various conditions of his probation imposed by the trial court in its written order below. Specifically, he challenges the portions of the probation order requiring him to pay for random drug and alcohol testing; to pay a 4% surcharge on all payments ordered by the court; and to pay $1.00 per month to First Step, Inc. of Jackson County. None of these conditions were orally pronounced at sentencing.
The State concedes error as to the first two conditions, and we therefore reverse and remand as to the requirement that Appellant pay for drug and alcohol testing1 and as to the 4% surcharge. See Justice v. State, 674 So. 2d 123, 125 (Fla.1996); State v. Hart, 668 So. 2d 589, 592-593 (Fla.1996); State v. Porchia, 716 So. 2d 766 (Fla.1998); Klug v. State, 667 So. 2d 956 (Fla. 1st DCA 1996). On remand, the trial court must issue an amended written probation order, and it may not reimpose these special conditions. See Carter v. State, 787 So. 2d 193, 194 (Fla. 1st DCA 2001); Justice, 674 So. 2d at 125 (Fla.1996).
We affirm as to the $1.00 per month payment to First Step, Inc., which is a statutory general condition of probation that the trial court was free to impose in its written order without first announcing it at sentencing. See § 948.03(l)(o), Fla. Stat.; Justice, 674 So. 2d at 125; Hart, 668 So. 2d at 592-593 (Fla.1996).
AFFIRMED in part, REVERSED in part, and REMANDED.
BOOTH, BROWNING and POLSTON, JJ., concur. . In contrast to payment for the testing, that portion of the order requiring that Appellant submit to random drug and alcohol testing was not error, thus we do not reverse as to this particular part of the order. Submission to drug and alcohol testing is a general condition of probation, authorized by section 948.03(l)(k)l, Florida Statutes. Therefore, there was no need for it to be pronounced orally at sentencing. See § 948.03(l)(k)l, Fla. Stat.; Brock v. State, 688 So. 2d 909 (Fla.1997); Torres v. State, 712 So. 2d 1169 (Fla 2d DCA 1998). Appellant does not specifically argue that the requirement to submit to testing was error, but we distinguish between these two aspects of the order to avoid any possible confusion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Brock v. State, 688 So. 2d 909 (Fla. 1997)
- Doyle Carter v. State, 787 So. 2d 193 (Fla. 1st DCA 2001)
- Torres v. State, 712 So. 2d 1169 (Fla. 2d DCA 1998)
- State v. Repoleon Porchia, 716 So. 2d 766 (Fla. 1998)
- Hardy v. State, 667 So. 2d 956 (Fla. 1st DCA 1996)
- Klug v. State, 667 So. 2d 956 (Fla. 1st DCA 1996)