JERMAINE TYRONE HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jermaine Holmes appealed his criminal conviction and sentence. The court affirmed his convictions and sentences but reversed and remanded the case to strike a probation condition requiring him to pay for drug and alcohol testing, as this condition was not orally pronounced at sentencing as required by Florida law.
A special condition of probation must be orally pronounced at sentencing to be properly imposed. The condition requiring Holmes to pay for drug and alcohol testing was not orally pronounced and therefore must be stricken from the written probation order to conform to the oral pronouncement.
[1] Special conditions of probation must be pronounced at the sentencing hearing to be valid.
[2] A condition requiring a probationer to pay for drug or alcohol testing is a special condition of probation that must be pronounced 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“The condition imposed upon the appellant, that he pay for alcohol and drug testing, is a special condition of probation that must be pronounced orally in order to be properly imposed on a probationer.”
Establishes the core legal principle that special probation conditions require oral pronouncement at sentencing
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Join FLexlaw to unlock all legal intelligenceHolmes was convicted and sentenced to probation with special conditions. Condition twelve of the probation order required him to submit to urinalysis,…
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PER CURIAM.
This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the convictions and sentences, but reverse that part of the probation order that included a special condition of probation that was not orally pronounced at sentencing.
Condition twelve of the order of probation provides that the appellant will submit to urinalysis, breathalyzer, or blood tests at any time. The last line of condition twelve states “[y]ou shall be required to pay for the tests unless payment is waived by your officer.” However, the last line was not orally pronounced at sentencing.
The appellant filed a rule 3.800(b) motion, wherein he contends that the trial court erred in entering a probation order, which included a special condition that he pay for drug and alcohol testing, when the condition was not orally pronounced at sentencing. The trial court granted the motion sixty-four days after the motion was filed. However, because the order was issued outside of the sixty-day time limit for rule 3.800(b) motions, the trial court’s order is a nullity and the appellant’s motion is deemed denied. See Byrd v. State, 840 So. 2d 436 (Fla. 1st DCA 2003); Robinson v. State, 850 So. 2d 658 (Fla. 1st DCA 2003); Fla. R.Crim. P. 3.800(b)(l)(B)(2003). Nonetheless, by filing a rule 3.800(b) motion, the appellant preserved this issue for consideration on direct appeal. See Fla. R.App. P. 9.140(e)(2)(2003); see also In re Anders Briefs, 581 So. 2d 149, 152 (Fla.1991) (holding that an indigent defendant does not lose his Anders rights because counsel is able to identify relatively minor sentencing issues).
The condition imposed upon the appellant, that he pay for alcohol and drug testing, is a special condition of probation that must be pronounced orally in order to be properly imposed on a probationer. See Fla. R.Crim. P. 3.986 (2003); Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992)(holding that all special conditions of probation must be orally pronounced at sentencing). Accordingly, this case must be remanded to the trial court to strike the offending condition, so that the written order of probation conforms to the oral pronouncement. See Pyle v. State, 596 So. 2d 744 (Fla. 1st DCA 1992). The appellant’s judgment and sentence is otherwise affirmed.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
BARFIELD, KAHN, and HAWKES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mac Benner v. State, 974 So. 2d 578 (Fla. 1st DCA 2008)…ial court failed to orally pronounce the special conditions at the time they were imposed. See State v. Williams, 712 So. 2d 762 (Fla.1998) (holding special condition of probation had to be pronounced orally to be properly imposed); Holmes v. State, 866 So. 2d 144, 145 (Fla. 1st DCA 2004) (same). Here, the trial court orally pronounced the special conditions that Appellant not consume any alcohol or non-prescribed drugs during his probation. Consequently, those conditions are valid and are AFFIRMED. However…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Cumbie v. State, 597 So. 2d 946 (Fla. 1st DCA 1992)
- Pyle v. State, 596 So. 2d 744 (Fla. 1st DCA 1992)
- Karlier Robinson v. State, 850 So. 2d 658 (Fla. 1st DCA 2003)
- Byrd v. State, 840 So. 2d 436 (Fla. 1st DCA 2003)