KAYLA NICHOLE FOSMIRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed Fosmire's convictions for lewd or lascivious exhibition and child-related offenses but struck an unpronounced special probation condition and remanded to correct the felony degree designation for two counts.
A trial court's failure to orally pronounce a special probation condition at sentencing renders that condition unenforceable, and a scrivener's error designating second-degree felonies as third-degree felonies must be corrected on remand.
[1] A trial court's failure to orally pronounce a special probation condition at sentencing renders that condition unenforceable and subject to striking on appeal.
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Join FLexlaw to unlock all legal intelligence“An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree.”
Statutory definition of the offense under Florida law establishing the correct felony degree.
Fosmire was convicted of two counts of lewd or lascivious exhibition, four counts of promoting sexual performance by a child, and one count of child a…
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Appellant appeals her convictions and sentences for two counts of lewd or lascivious exhibition, four counts of promoting sexual performance by a child, and one count of child abuse. We affirm all aspects of Appellant’s convictions and sentences except for the following: we strike the special condition contained in the trial court’s Order of Sex Offender Probation requiring Appellant to pay $1.00 per month to First Step, Inc. of Bay County, Florida, because the trial court failed to orally pronounce that condition at Appellant’s sentencing, see Elmore v. State, 600 So.2d 569, 569 (Fla. 1st DCA 1992); and we remand the written judgment and sentence for correction of a scrivener’s error which designates Appellant’s lewd or lascivious exhibition convictions (Counts I and II) as third-degree felonies when they are *201in fact second-degree felonies. § 800.04(7) (b), Fla. Stat. (2017) (“An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree .... ”). Because this is a ministerial act, Appellant’s presence is not required. Jackson v. State, 936 So.2d 1172, 1172 (Fla. 1st DCA 2006).
AFFIRMED in part, REVERSED in part, and REMANDED with directions.
B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.
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Citator
Authorities Cited
- Brown v. State, 600 So. 2d 569 (Fla. 1st DCA 1992)
- Jackson v. State, 936 So. 2d 1172 (Fla. 1st DCA 2006)