RUSSELL RUSSMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Russman appealed his convictions for burglary with a firearm, possession of a short-barreled shotgun, theft of a firearm, and resisting an officer. The court affirmed the convictions but struck an improper probation condition that was not orally pronounced at sentencing and not listed in the statutory standard probation conditions.
The prosecutor's remarks were not an improper comment on Russman's failure to testify because the reference was to his statements given to police that were already in evidence and used by the defense. However, condition 12 of the probation order must be struck because it was not orally pronounced by the trial judge at sentencing and is not included in the statutory list of standard probation conditions.
[1] A prosecutor's closing argument remark referring to a defendant's "testimony" is not an impermissible comment on the defendant's failure to testify when the defendant's o…
[2] A condition of a probation order that was not orally pronounced by the sentencing judge must be stricken.
Previewing 2 of 3 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“And the only person contradicting or conflicting with that [the victim's, testimony, which identified Russman as the burglar] was defendant telling the police he was sleeping in the woods.”
The prosecutor's statement during closing argument that Russman argued was an improper comment on his failure to testify
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Join FLexlaw to unlock all legal intelligenceRussman was apprehended in dense woods and told police he was homeless and sleeping there. The victim identified Russman as the burglar. A police dete…
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Russman appeals from his judgments and sentences for burglary of a dwelling with a firearm, possession of a short-barreled shotgun, theft of a firearm and resisting an officer without violence.1 We affirm, but strike a condition of the probation order. We find Russman’s argument that the prosecutor’s remarks made during closing argument were “fairly susceptible” of being interpreted by the jury as a comment on Russman’s failure to testify, without merit. Russman did not testify at his trial. The prosecutor said in closing argument:
And the only person contradicting or conflicting with that [the victim’s, testimony, which identified Russman as the burglar] was defendant telling the police he was sleeping in the woods. Please use your common sense because the judge is going to instruct you on conflict of evidence. You can decide who to believe or who not to believe and what evidence supports the defendant’s testimony.
In the context of this trial, the prosecutor was responding to the defense attor ney’s argument that the police had apprehended the wrong man, that Russman had told them he was homeless and living in the dense woods in which he was found, and that he was not the burglar. Although Russman did not testify, a police detective did testify as to what Russman said after he was apprehended. The prosecutor’s reference to the defendant’s testimony was not confusing because Russ-man’s statements given to the police were in evidence and defense used those statements to argue he was innocent, and merely poor and unlucky. See State v. Dix, 723 So. 2d 351 (Fla. 5th DCA 1998); Dorman v. State, 638 So. 2d 589 (Fla. 3d DCA 1994).
However, we agree with Russman, and the state concedes, that condition 12 of the probation order2 must be struck. At the sentencing hearing, the trial judge did not orally pronounce this condition and it is not included in the list of standard probation conditions in section 948.03(l)(a)-(m). See Justice v. State, 674 So. 2d 123 (Fla.1996); Rothery v. State, 757 So. 2d 1256 (Fla. 5th DCA 2000).
AFFIRMED. REMANDED to Strike Condition 12 of Probation Order. MONACO and TORPY, JJ., concur. . §§ 810.02(2), 790.221(1), 812.014(2)(c)5„ 843.02, Fla. Stat. . Russman’s probation order contains the following condition:
12. The Court retains jurisdiction to place you in the Probation and Restitution Center upon recommendation of your Probation Officer without finding of violation of probation.
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Citator
Cited By
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Grubb v. State, 922 So. 2d 1002 (Fla. 5th DCA 2006)…case law, most recently enunciated in Jackson v. State, 902 So. 2d 193 (Fla. 5th DCA 2005), holding that special conditions of probation, not orally pronounced during sentencing, must be stricken and may not be reimposed. See also Russman v. State, 869 So. 2d 635 (Fla. 5th DCA 2004). “[T]his rule was grounded in procedural due process principles of notice and opportunity to be heard, because written sentencing orders are not customarily provided to defendants until after court proceedings are concluded, defe…
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Jackson v. State, 902 So. 2d 193 (Fla. 5th DCA 2005)…Special conditions of probation that are not announced orally during a sentence hearing must be stricken and may not be reimposed at resentencing unless statutory exceptions exist. E.g., Ashley v. State, 850 So. 2d 1265 (Fla.2003); Russman v. State, 869 So. 2d 635 (Fla. 5th DCA 2004). In certain instances a condition of probation which is statutorily authorized or mandated may be imposed and included in a written order of probation although omitted from oral pronouncements at sentencing. E.g., State v. Hart,…
Authorities Cited
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Rothery v. State, 757 So. 2d 1256 (Fla. 5th DCA 2000)
- State v. Kent, 723 So. 2d 351 (Fla. 2d DCA 1998)
- Dorman v. State, 638 So. 2d 589 (Fla. 3d DCA 1994)