MICHAEL JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Jackson appeals his burglary conviction and twenty-year sentence, challenging both jury selection procedures and conditions of probation. The court affirmed the conviction and sentence but partially struck and remanded certain probation conditions that were included in the written order but not orally pronounced at sentencing.
The court held that special probation conditions not orally pronounced must generally be stricken, but statutorily authorized or mandated conditions may be imposed through written order alone if constructive notice and opportunity to be heard are provided. Specifically: (1) the payment requirement in the drug testing condition must be stricken permanently; (2) the First Step, Inc. fee must be stricken but may be reimposed after notice and hearing; and (3) the warrantless search condition is valid as a statutorily authorized condition.
[1] 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 excepti…
[2] A condition of probation that is statutorily authorized or mandated may be imposed and included in a written order of probation although omitted from oral pronouncements…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the fundamental rule that oral pronouncement is required for special probation conditions
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Join FLexlaw to unlock all legal intelligenceJackson was convicted of burglary of an occupied structure and sentenced to twenty years in the Department of Corrections followed by ten years of pro…
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PETERSON, J.
Michael Jackson appeals his judgment and sentence for burglary of an occupied structure for which he was sentenced to twenty years in the Department of Corrections, followed by ten years probation. We find no merit in his complaint that the trial court refused to grant additional peremptory challenges during jury selection and address only his complaint that three conditions appeared in the written probation order that were not orally pronounced during the sentencing hearing.
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, 668 So. 2d 589, 592 (Fla.1996).
Condition 9 of Jackson’s written probation order requires him to submit to, and pay for drug testing and treatment. Submission to random drug testing and treatment is a general condition of probation 1 that does not require oral pronouncement at the sentencing hearing. But, the requirement that Jackson pay for the testing and treatment is a special condition that must be orally pronounced at sentencing. The State’s concession of the error requires us to strike only that portion of condition 9 that requires payment; it may not be reimposed. See, e.g., Frasilus v. State, 840 So. 2d 1117 (Fla. 5th DCA 2003) (citing Maddox v. State, 760 So. 2d 89 (Fla. 2000)); Jones v. State, 846 So. 2d 662 (Fla. 2d DCA 2003).
Condition 10 of the written probation order requires Jackson to pay $1.00 to First Step, Inc., for each month of supervision, but the payment requirement was not orally pronounced at sentencing and it is not included in the list of general probation conditions for which no pronouncement is required.2 However, the fee is statutorily authorized.3 We must strike the requirement that Jackson pay the fee, but upon remand, it may be reimposed after Jackson receives appropriate notice and an opportunity to be heard.4 See, e.g., Hart, 668 So. 2d at 592 (noting that con- struetive notice provided by the statute together with the opportunity to be heard at sentencing regarding any objection that may be raised concerning the condition satisfies procedural due process requirements); Caton v. State, 862 So. 2d 901 (Fla. 2d DCA 2003) (striking condition requiring payment of $1.00 to First Step, Inc., because it was not orally pronounced at sentencing, and authorizing the trial court to reimpose the fee after appropriate notice and an opportunity to be heard); McRae v. State, 679 So. 2d 14 (Fla. 5th DCA 1996) (allowing imposition of $1.00 fee to First Step, Inc.).
Condition 11 requires Jackson to submit to warrantless searches of his person, residence and property. This condition is statutorily authorized and does not have to be orally pronounced at the sentencing hearing to be validly imposed.5 See, e.g., Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002) (holding that the requirement that a probationer submit to warrantless searches is valid even though it is not pronounced at sentencing, because section 948.03(5) authorizes the condition, and provides the necessary notice).
We affirm the judgment and sentence, but strike that portion of condition 9 requiring payment for drug testing and treatment. We also strike condition 10, but remand to allow the trial court to reimpose the condition that requires a monthly payment to First Step, Inc., if it is deemed appropriate.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
SAWAYA, C.J., and THOMPSON, J., concur. . See § 810.02(3)(c), Fla. Stat (2003).
. See § 948.03(1)(a)-(m), Fla. Stat. . See § 948.03(1)(o ), Fla. Stat. .Section 948.03(1) provides that conditions specified in paragraphs 948.03(a)-(m) do not require oral pronouncement at the time sentencing. By implication, the condition set forth in 948.03(l)(o) requires oral pronouncement to be imposed.
. See § 948.03(5)(a)10, Fla. Stat.
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Citator
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Grubb v. State, 922 So. 2d 1002 (Fla. 5th DCA 2006)…bation included in the written probation order, but not orally pronounced during the sentencing hearing, must be stricken. We consider this matter en banc to recede from a long-standing body of 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 proced…
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Williams v. State, 916 So. 2d 999 (Fla. 2d DCA 2005)…shall be amended to delete the teen court assessment. We also reverse the imposition of a $1 cost for First Step. This cost was not orally announced, and it was imposed without any written citation to an authorizing statute. See Jackson v. State, 902 So. 2d 193 (Fla. 5th DCA 2005); see also Caton v. State, 862 So. 2d 901 (Fla. 2d DCA 2003). Finally, we note a scrivener’s error in the judgment. Williams pleaded guilty to a third-degree felony, burglary of a conveyance. But the written judgment erroneously…
Authorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Caton v. State, 862 So. 2d 901 (Fla. 2d DCA 2003)
- Jones v. State, 846 So. 2d 662 (Fla. 2d DCA 2003)
- Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002)
- Frasilus v. State, 840 So. 2d 1117 (Fla. 5th DCA 2003)
- Russman v. State, 869 So. 2d 635 (Fla. 5th DCA 2004)
- Knestaut v. State, 679 So. 2d 14 (Fla. 2d DCA 1996)
- Alphonso McRAE v. State, 679 So. 2d 14 (Fla. 5th DCA 1996)