GARY DAVID NERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Nero challenged his sex offender probation order on grounds that he was not convicted of enumerated felonies under Florida law. Although the postconviction court agreed the order was illegal on its face, it denied relief. The appellate court reversed, holding that a probation order must clearly delineate applicable conditions and cannot require the probationer to decipher which conditions apply by researching statutes.
The court held that the probation order was illegal because it failed to give fair notice of the conditions applicable to Appellant. A probation order must clearly delineate which conditions apply to the probationer and cannot require the probationer to decipher applicability by researching statutes.
[1] A probation order must provide fair notice of the conduct that might result in a violation.
[2] A probation order that requires a probationer to research statutes to determine applicable conditions fails to provide fair notice.
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Join FLexlaw to unlock all legal intelligence“the one-size-fits-all probation order at use here impermissibly required Appellant to decipher which of the conditions apply by, among other things, researching particular statutes to determine if they apply to his circumstances. This does not give fair notice of what is expected of Appellant.”
Establishes the core holding that probation orders must clearly delineate applicable conditions without requiring the probationer to research statutes.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of a crime but not of any felony enumerated in section 948.30, Florida Statutes. Nevertheless, he received an "ORDER OF SEX OF…
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In this postconviction proceeding, Appellant challenges the order denying his Florida Rule of Criminal Procedure 3.800(a) motion on three grounds, only one of which merits discussion. In his third claim, Appellant argued that the trial court’s “ORDER OF SEX OFFENDER PROBATION” was illegal because he was not convicted of any of the enumerated felonies listed in section 948.30, Florida Statutes (2012).
The postconviction court agreed with Appellant on the merits, but nevertheless denied relief, concluding that although labeled as an “ORDER OF SEX OFFENDER PROBATION,” the actual substance of the order indicated that the only conditions applicable to Appellant were those “generic” conditions contained in the first fourteen paragraphs that “cover all [probationary] circumstances.” As for the remaining eighteen paragraphs of sex offender conditions contained within the order, the postconviction court reasoned that, with the exception of two of these sex offender conditions, the order made clear that the remaining sixteen sex offender conditions were applicable to sex offenses other than those for which Appellant was convicted.
We conclude that the postconviction court erred in not granting relief. Although we appreciate the need for efficiency in trial court proceedings, the one-size-fits-all probation order at use here imper-missibly required Appellant to decipher which of the conditions apply by, among other things, researching particular statutes to determine if they apply to his circumstances. This does not give fair notice of what is expected of Appellant. See Lawson v. State, 941 So.2d 485, 489 (Fla. *7815th DCA 2006) (probation order should give fair notice of conduct that might result in violation). On remand, the trial court shall enter a new order that clearly delineates the conditions applicable to Appellant.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
PALMER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.