BYRON DAMON LAVENDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2016-11-04
No. 2D15-417
BLACK and SLEET, JJ., Concur!
203 So. 3d 969 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 4 cases

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Synopsis

Byron Damon Lavender appealed his conviction for burglary of a dwelling with assault, challenging two special probation conditions that were not orally pronounced at sentencing. The court affirmed the conviction and sentence, holding that because Lavender had the procedural opportunity to challenge the conditions through a Rule 3.800(b) motion and raised only procedural—not substantive—objections, he was afforded adequate due process and the conditions need not be struck.


Holding

The court affirmed the special probation conditions, holding that because Rule 3.800(b) provides defendants procedural due process to challenge improperly imposed special conditions of probation, and Lavender raised only procedural rather than substantive objections, there is no basis requiring the conditions be struck.


Headnotes

[1] Special conditions of probation must be orally pronounced at sentencing unless the defendant has a procedural due process remedy through a rule 3.800(b) motion.

[2] A probationer's failure to raise substantive objections to special conditions of probation in a rule 3.800(b) motion precludes striking those conditions based solely on a…

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Key Quotes

“Special terms and conditions of probation must be imposed by oral pronouncement at sentencing.”

Establishes the general rule requiring oral pronouncement of special probation conditions under § 948.039, Fla. Stat.

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Facts & Procedural History

Lavender was convicted of burglary of a dwelling with assault and sentenced to seven years in prison followed by two years of community control and th…

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Opinion of the Court
MORRIS, Judge.

MORRIS, Judge.

Byron Damon Lavender appeals his judgment and sentence for burglary of a dwelling with assault. We affirm his judgment without further comment. We also affirm his sentence,1 but we write to address his challenge to the imposition of two special conditions of probation for which the State conceded error.

Special condition 17 required Lavender, to maintain an hourly accounting of all of his activities in a daily log. Special condition 19 required Lavender to submit to electronic monitoring and to pay $5.50 *971per day for the cost of the monitoring. Lavender challenged the imposition of these special conditions by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that they should be stricken because the trial court failed to orally pronounce them at sentencing. Although the trial court attempted to correct these sentencing errors by granting Lavender’s motion to correct sentencing error, the trial court did- not do so within the sixty-day window afforded by rule 3.800(b)(2)(B). Consequently, the order granting Lavender’s motion is a nullity. See Williams v. State, 67 So.3d 249, 250-51 (Fla. 2d DCA 2010).

Special terms and conditions of probation must be imposed by oral pronouncement at sentencing. § 948.039, Fla. Stat. (2014).: Here, the requirement of maintaining a daily activity log is not statutorily authorized under sections 948.101 and 948.03, and thus it was required to be orally pronounced at sentencing. And while the requirement of submitting to electronic monitoring is a standard condition of probation that need not be orally pronounced, see § 948.101(l)(d), there is no statutory authority for requiring a probationer to pay for such monitoring. Thus, that portion of condition 19 was also required to be orally pronounced at sentencing.

In prior cases, we have stricken special conditions of probation that were not orally pronounced. See Ladson v. State, 955 So.2d 612, 613 (Fla. 2d DCA 2007) (en banc) (citing cases). However, in Ladson, we explained that with the adoption of rule 3.800(b), defendants now have the opportunity to raise substantive objections to probation conditions, and consequently, “procedural due process is satisfied without the need to orally pronounce otherwise proper special probation conditions.” Id. (quoting Grubb v. State, 922 So.2d 1002, 1003 (Fla. 5th DCA 2006)). We concluded that Lad-son was not entitled to relief on his challenge to the imposition of a portion of a probation condition that ..was not orally pronounced because his. “objection, was procedural only and he raised no substantive basis to strike the condition.” Id. We also receded from cases ,“in which we struck unpronounced conditions even though the appellant was able to challenge those conditions by the rule 3.800(b) procedure.*’2 Id.

Here, as in Ladson, Lavender filed a rule 3.800(b) motion wherein he only made a procedural objection to special condition 17 and the portion of condition 19 that required payment for electronic monitoring. He did not make any substantive objections to the conditions. Thus because he was afforded procedural due process through the rule 3.800(b) procedure, there is no other basis requiring us to strike thé conditions.3 Accordingly, we affirm.

Affirmed.

BLACK and SLEET, JJ., Concur!


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Citator

Cited By

  • Romano v. State, 205 So. 3d 828 (Fla. 2d DCA 2016)
    …e unpronounced special condition requiring him to “pay for” drug testing, procedural due process is satisfied and he is not entitled to have the special condition stricken absent some substantive challenge); see also Lavender v. State, No. 2D15-417, 203 So. 3d 969, 2016 WL 6563107 (Fla. 2d DCA Nov. 4, 2016) (noting that cases on this issue predating rule 3.800(b) are no longer applicable). Regarding the second issue Romano raised in his.rule 3.800(b) motion, he is entitled to have the trial court enter a cor…
  • Thompson v. State, 239 So. 3d 1269 (Fla. 2d DCA 2018)

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