JOSEPH HICKS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Joseph Hicks petitioned for a writ of habeas corpus alleging his appellate counsel was ineffective for failing to raise on appeal that the trial court failed to orally pronounce special probation conditions and failed to timely file a written probation order. The court granted the petition, finding appellate counsel should have raised these jurisdictional defects and ordered a new appellate proceeding.
The court held that appellate counsel was ineffective for failing to raise the sentencing issues on appeal and preserve them through a rule 3.800(b) motion. The court found that special conditions of probation must be orally pronounced at sentencing, that the written order was not timely entered within 60 days, and that the trial court lacked jurisdiction to impose the special condition without proper procedure.
[1] General conditions of probation not orally pronounced at sentencing may validly be imposed by a subsequent timely written order of probation.
[2] A special condition of probation, such as completion of drug treatment, must be orally pronounced at sentencing to be validly imposed.
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Join FLexlaw to unlock all legal intelligence“However, the special condition that petitioner complete drug treatment must be orally pronounced at sentencing in order to be included in an order of probation.”
Establishes the legal requirement that special probation conditions must be orally pronounced at sentencing
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Join FLexlaw to unlock all legal intelligenceHicks was sentenced to probation with a special condition requiring drug treatment. The sentencing transcript shows no special condition for drug trea…
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Petitioner alleges that his appellate counsel was ineffective on appeal from a revocation of probation. Petitioner contends that his appellate counsel was ineffective in failing to argue that the trial court did not orally pronounce the standard and special conditions of probation and did not timely file a written order of probation. This issue was not preserved below, but counsel should have filed a rule 3.800(b) motion. See, e.g., Flowers v. State, 965 So.2d 1233 (Fla. 1st DCA 2007).
This court in Jones v. State, 876 So.2d 642 (Fla. 1st DCA 2004), stated that general conditions may be imposed either orally, or in writing, or both. General conditions of probation not orally pronounced at sentencing may validly be imposed by subsequent timely written order of probation. See State v. Williams, 712 So.2d 762, 764 (Fla.1998). However, the special condition that petitioner complete drug treatment must be orally pronounced at sentencing in order to be included in an order of probation. See Kirkland v. State, 666 So.2d 974 (Fla. 1st DCA 1996). The transcript of the sentencing hearing shows that no special condition of probation for drug treatment was announced. In addition, the written order of probation was not timely entered. It was not entered within 60 days of the sentencing. Therefore, the trial court was without jurisdiction to modify the probation to impose the special condition. See Music v. State, 655 So.2d 231 (Fla. 1st DCA 1995).
Furthermore, the state acknowledges that there is no evidence of any acknowl-edgement by petitioner that he understood the terms and conditions of his probation. The Florida Supreme Court has held that the trial court and the probation order must adequately place the probationer on notice of conduct both required and prohibited during the probationary period. Lawson v. State, 969 So.2d 222 (Fla.2007). A defendant cannot willfully violate a condition of probation without being on adequate notice of the conduct that is prohibited. Id. at 230.
We hold that petitioner’s appellate counsel was ineffective for failing to raise these issues on appeal and preserve them by filing a rule 3.800(b) motion. Accordingly, we grant the petition for ineffective assistance of appellate counsel. We order commencement of a new appellate proceeding. A copy of this opinion will be provided to the clerk of the circuit court upon issuance of mandate, who shall treat it as a timely notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. The trial court shall entertain any filed rule 3.800(b)(2) motion to preserve the sentencing error discussed in this proceeding. The resulting new appellate proceeding before this court shall be limited to the issues described above.
PETITION GRANTED.
WOLF, LEWIS, and ROBERTS, JJ., concur.
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Cited By
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Bernal v. State, 9 So. 3d 748 (Fla. 1st DCA 2009)…tablishing an indigent defendant’s right to court-appointed counsel on direct appeal). Compare Florence v. State, 754 So. 2d 175, 176 (Fla. 1st DCA 2000), ivith Toliver v. State, 737 So. 2d 1142, 1143-44 (Fla. 1st DCA 1999). See also Hicks v. State, 1 So. 3d 1233, 1234 (Fla. 1st DCA 2009) (holding “that petitioner’s appellate counsel was ineffective for failing to raise these issues on appeal and preserve them by filing a rule 3.800(b) motion”).…
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Earnest Carl Daugthrey v. State (Fla. 1st DCA 2023)…ntested conditions did not require oral pronouncement, they did need to be timely imposed. “General conditions of probation not orally pronounced at sentencing may validly be imposed by subsequent timely written order of probation.” Hicks v. State, 1 So. 3d 1233, 1234 (1st DCA 2009) (citing State v. Williams, 712 So. 2d 762, 764 (Fla. 1998)). Since the written order was filed outside of the sixty-day window, the additional probation conditions were improper. We reverse on this claim and remand for the tria…
Authorities Cited
- Lawson v. State, 969 So. 2d 222 (Fla. 2007)
- State v. Chuck Junior Williams, 712 So. 2d 762 (Fla. 1998)
- Loring Spencer Jones v. State, 876 So. 2d 642 (Fla. 1st DCA 2004)
- Kirkland v. State, 666 So. 2d 974 (Fla. 1st DCA 1996)
- Flowers v. State, 965 So. 2d 1233 (Fla. 1st DCA 2007)
- Music v. State, 655 So. 2d 231 (Fla. 1st DCA 1995)