VERNIA SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a single instance of intoxicant use can constitute a violation of probation if it results in impairment, and that a written revocation order must conform to the trial court's oral pronouncements.
[1] A written order of probation revocation must conform to the trial court's oral pronouncements.
[2] A single instance of intoxicant use may constitute a violation of probation if it results in the probationer becoming drunk, inebriated, or otherwise mentally or physical…
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Join FLexlaw to unlock all legal intelligenceSmith was found to have violated probation conditions, but the written order incorrectly listed violations not announced orally. Smith argued that a s…
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In this case, Vernia Smith appeals the trial court’s order revoking his probation. As reflected below, we affirm in part and reverse in part.
On April 80, 2012, Smith pled guilty to the offense of unlawful driving as a habitual traffic offender and was placed on probation. While on probation, Smith was investigated for sexual battery, although he was never charged with that offense. Instead, as a result of the investigation, he was charged with violating the following conditions of his probation: condition five (“failing to live and remain at liberty without violating the law”); condition seven (“using intoxicants to excess or possessing any drugs or narcotics, unless prescribed by a physician”); condition eight (“failing to successfully complete 50 hours of community service”); and condition eighteen (“failing to complete a Drive Legal Program”).
*254Following an evidentiary hearing, the trial judge announced from the bench that Smith had violated condition seven, but that the State had failed to prove that Smith had violated conditions five, eight, and eighteen. The order of revocation of probation, however, reflected that Smith had violated conditions five, eight, and eighteen. The State concedes that the discrepancy between the written order and the oral pronouncement reflects error. We therefore remand for an entry of a written revocation order correctly reflecting the trial court’s oral ruling. See Stark v. State, 712 So.2d 454, 455 (Fla. 2d DCA 1998) (finding that the written order of probation should match the trial court’s oral pronouncements); see also Reiter v. State, 674 So.2d 189, 190-91 (Fla. 2d DCA 1996) (finding that the “written [probation] order must be modified to conform to the court’s oral pronouncement”).
Smith’s main contention on appeal is that the record fails to contain evidence that he violated condition seven, which, as mentioned above, prohibited him from “using intoxicants to excess or possessing any drugs or narcotics, unless prescribed by a physician.” In making this argument, Smith accurately notes that the record reflects that Smith used intoxicants on probation only once. Citing to Alston v. State, 646 So.2d 184 (Fla.1994), and its progeny,1 Smith argues that a single use of intoxicants does not constitute a violation of probation. We distinguish the Alston line of cases on the basis that the officers in those cases did not witness the probationers in an intoxicated or inebriated state.
While the Court in Alston rejected the position that “a single drug test, without more, is sufficient evidence to find a violation of this particular community control provision,” it did so “because the conduct established does not appear to be that which the excessive use condition was intended to proscribe.” Id. at 185. In so holding, the Court cited with approval to Scott v. State, 524 So.2d 1148 (Fla. 3d DCA 1988), in which this Court held that probation could be revoked based upon a police officer observing the defendant staggering down the street in an intoxicated state on a single occasion. Under Alston, therefore, even a single use of an intoxicant can qualify as excessive when there is also evidence that the use caused the probationer to become drunk, inebriated, or otherwise mentally or physically impaired.
In the instant case, the investigating officer testified that he had difficulty reading Smith his Miranda2 rights because Smith “appeared to be out of it.” Shortly after his arrest, Smith gave a videotaped statement at the police station, which was played at the hearing and observed by the trial court. On the tape, Smith admitted that he was under the influence of both cocaine and alcohol. The officer attempted to read Smith the Miranda warning, but gave up due to Smith’s condition. After the officer left the room, Smith put his head down on a desk for over ten minutes and appeared to fall asleep. Taken together, these facts are sufficient for the trial judge to have found that Smith’s use of cocaine and alcohol impaired his faculties to the point where he was “using intoxicants to excess” in violation of condition seven of his probation.
*255Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Villanueva v. State, 118 So. 3d 999 (Fla. 3d DCA 2013)…sentenced] by a definite term of imprisonment not exceeding 1 year.”). And the State concedes error on both points. On remand, the trial court is directed to enter a written order that correctly reflects its oral pronouncements. See Smith v. State, 100 So. 3d 253, 254 (Fla. 3d DCA 2012); Stark v. State, 712 So. 2d 454, 455 (Fla. 2d DCA 1998). CONCLUSION Because the condition was reasonably related to Villanueva’s rehabilitation for the crime for which he was convicted when the facts in the record are consi…
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Brown v. State, 221 So. 3d 731 (Fla. 1st DCA 2017)…cessive-use condition cannot be met without more. However, the State argues that Alston is distinguishable because the case at hand did not involve a single positive drug test. Instead,' the State argues this case is more similar to Smith v. State, 100 So. 3d 253, 254 (Fla. 3d DCA 2012), in which the Third District found evidence that officers observed Smith in an intoxicated state on a single occasion was sufficient to support the trial court’s finding that Smith violated the terms of his probation by using…
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Frazier v. State, 388 So. 3d 246 (Fla. 3d DCA 2024)…failure to pay costs of supervision, and failure to pay drug testing fees) were not proven. The oral pronouncement controls. See Smith v. State, 306 So. 3d 1147 (Fla. 3d DCA 2020); Shacker v. State, 106 So. 3d 36 (Fla. 3d DCA 2013); Smith v. State, 100 So. 3d 253 (Fla. 3d DCA 2012). However, Frazier failed to preserve this issue for appeal either by contemporaneous objection to the written revocation order, or by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). S…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Reiter v. State, 674 So. 2d 189 (Fla. 2d DCA 1996)
- Blackshear v. State, 838 So. 2d 1228 (Fla. 1st DCA 2003)
- Alston v. State, 646 So. 2d 184 (Fla. 1994)
- Scott v. State, 524 So. 2d 1148 (Fla. 3d DCA 1988)
- Blair v. State, 745 So. 2d 496 (Fla. 1st DCA 1999)
- Ross v. State, 701 So. 2d 635 (Fla. 2d DCA 1997)
- State v. Vincente Rodriguez, 712 So. 2d 454 (Fla. 2d DCA 1998)
- Stark v. State, 712 So. 2d 454 (Fla. 2d DCA 1998)
- McGATHEY v. State, 71 So. 3d 224 (Fla. 2d DCA 2011)