CATHERINE CAPOZZI

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed June 25, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1336 Lower Tribunal No. F20-2614 ________________

Catherine Capozzi, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Cristina Miranda, Judge.

Carlos J. Martinez, Public Defender, and Deborah M. Prager and Nicholas Lynch, Assistant Public Defenders, for appellant.

James Uthmeier, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, and Daihana Chang, Assistant Attorney General, for appellee.

Before EMAS, MILLER and GOODEN, JJ.

EMAS, J.

2

INTRODUCTION

Catherine Capozzi appeals from the trial court’s order denying her motion to correct sentence, contending that two conditions of probation imposed by the trial court were unpronounced special conditions, were erroneously imposed, and must be stricken or corrected. We agree and, for the reasons below, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The material underlying facts are not in dispute. In 2020, the State charged Capozzi with four felony counts: driving under the influence/manslaughter; vehicular homicide; driving under the influence with serious bodily injury to another; and reckless driving with serious bodily injury. Capozzi and the State entered into a negotiated plea agreement, under which Capozzi pled guilty to all four counts, and the trial court sentenced her to a total of twenty years in prison, followed by a total of seven years of supervision (combined periods of community control and probation). At sentencing, the trial court orally pronounced certain special conditions of probation: And the special conditions for the probation and community control is that you enroll in a DUI school. You complete all of the terms of the DUI school. You have to do one session of the Victim Impact Panel. There is a no-drive order and you'll reside in an

The written probation order included additional conditions, which the order described as “standard conditions of supervision.” These additional conditions were not orally pronounced. Pertinent to this appeal, the unpronounced conditions contained in the probation order included Conditions Seven and Eight: (7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.

(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.

(Emphasis added). While the instant appeal was pending, Capozzi filed a motion to correct sentencing errors,1 requesting the trial court amend the probation order to: - Modify Condition Seven to add the word “knowingly” before the word “visit,” to read: “Nor will you knowingly visit places where

1 See Fla. R. Crim. P. 3.800(b)(2) (delineating the procedure for filing a motion to correct sentencing error while an appeal is pending, and providing inter alia, that such a motion be served before service of the party’s first brief).

ANALYSIS

A. Standard Conditions v. Special Conditions of Probation

It is undisputed that the written order of probation does not conform to the trial court’s oral pronouncement at sentencing, given that Conditions Seven and Eight of the written probation order were not a part of the special conditions the trial court orally pronounced and imposed at sentencing. Nevertheless, the State contends these two conditions are “standard” (or

2 See Fla. R. Crim. P. 3.800(b)(2)(B) (“[I]f the trial court does not file an order ruling on the motion within 60 days, the motion shall be deemed denied . . . .”).

Lawson v. State, 969 So. 2d 222, 227 n.3 (Fla. 2007) (internal citations omitted). This distinction—between standard conditions and special conditions of probation—is statutorily codified. Statutorily authorized conditions are listed in section 948.03, Florida Statutes (2023), and a probationer is therefore on constructive notice of the existence of these standard conditions. As a result, “[c]onditions specified in this section do not require oral pronouncement at the time of sentencing and may be considered

3 The terms “standard” and “general” are used interchangeably in the context of conditions of probation. Section 948.03(1), Florida Statutes (2023) refers to “standard” conditions of probation, while Florida Rule of Criminal Procedure 3.986 and case law refers to “general” conditions of probation. For consistency, and insofar as possible, we use the term “standard” conditions of probation throughout the opinion.

(b) Permit the probation officer to visit him or her at his or her home or elsewhere.

(c) Work faithfully at suitable employment insofar as may be possible.

(d) Remain within a specified place.

(e) Live without violating any law. A conviction in a court of law is not necessary for such a violation of law to constitute a violation of probation, community control, or any other form of courtordered supervision.

(f) Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court. . . .

(g) Effective July 1, 1994, and applicable for offenses committed on or after that date, make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the felony probationer while in that detention facility. . . .

(h) Support his or her legal dependents to the best of his or her ability.

(i) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on change of circumstances.

7 (j) Pay any application fee assessed under s. 27.52(1)(b) and attorney's fees and costs assessed under s. 938.29, subject to modification based on change of circumstances.

(k) Not associate with persons engaged in criminal activities.

(l) 1. Submit to random testing as directed by the probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances.

2. If the offense was a controlled substance violation and the period of probation immediately follows a period of incarceration in the state correctional system, the conditions must include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of supervision, upon the direction of the probation officer.

(m) Be prohibited from possessing, carrying, or owning any:

1. Firearm.

2. Weapon without first procuring the consent of the probation officer.

(n) Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician, an advanced practice registered nurse, or a physician assistant. The probationer or community controllee may not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(o) Submit to the drawing of blood or other biological specimens as prescribed in ss. 943.325 and 948.014, and reimburse the appropriate agency for the costs of drawing and transmitting the blood or other biological specimens to the Department of Law Enforcement.

8 (p) Submit to the taking of a digitized photograph by the department as a part of the offender's records. This photograph may be displayed on the department's public website while the offender is under court-ordered supervision. However, the department may not display the photograph on the website if the offender is only on pretrial intervention supervision or if the offender's identity is exempt from disclosure due to an exemption from the requirements of s. 119.07.

(Emphasis added). Florida Rule of Criminal Procedure 3.986 is a form order of probation, and a trial court utilizing such a form is instructed to set forth any “general conditions” being imposed under the statute and to list and orally pronounce any “special conditions” being imposed by the trial court: GENERAL CONDITIONS: [List the general conditions of probation pursuant to section 948.03, Florida Statutes.]

SPECIAL CONDITIONS: [List the special conditions of probation as orally pronounced and authorized by law.]

(Emphasis added). Prior to 2019, however, the form order of probation in Rule 3.986 included its own enumerated list of standard conditions, with slight variations from those listed in the statute. In 2019 the Florida Supreme Court amended the rule, deleting the standard conditions listed in this form to “avoid constant amendment of the rule.” In re Amends. to Fla. Rules of Crim. Proc.-2018 Regular-Cycle Rep., 265 So. 3d 494, 547 (Fla. 2018). These pre-2019 conditions listed in Rule 3.986’s form order were considered standard

Once defendants are charged and subject to the controlling terms of the rules of criminal procedure, we think the publication of general terms of probation in the rules provides all defendants with sufficient notice to permit an opportunity to object if probation is imposed. The rules provide the same type of notice as the probation conditions set forth in the Florida Statutes. See, e.g., §§ 948.03–.034, Fla. Stat. (1993). Consistent with the purpose and policy of Beasley, we hold that all defendants facing the imposition of probation are on constructive notice of conditions one through eleven set forth in the form for order of probation, which is contained in the rules of criminal procedure. Only those “special” conditions of probation not set out in the general conditions portion of the rules need be specifically pronounced at sentencing.

(Internal citations omitted). Of course, this rationale—that the enumeration of standard conditions of probation in the form provided by Rule 3.986 satisfies the notice requirement in the same way that the publication of section 948.03, Florida Statutes provides constructive notice to the probationer—is no longer viable,

B. Condition Seven of the Written Probation Order

Condition Seven of the written probation order relates to the use and/or possession of intoxicants: You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.

(Emphasis added). By contrast, section 948.03(1)(n), which prohibits similar conduct, includes a knowledge component: Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician, an advanced practice registered nurse, or a physician assistant. The probationer or community controllee may not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(Emphasis added).

4 Our review of the probation order on appeal suggests that the Circuit Court of the Eleventh Judicial Circuit continues to use a form modeled after the Form 3.986 as it existed before the amendment of the rule in 2019.

5 For a trial court to revoke probation based on a violation of a condition of probation, the State must prove the violation was willful and substantial— thus, indicating knowledge is inherent to any condition of probation. See Roundtree v. State, 955 So. 2d 1184, 1186 (Fla. 3d DCA 2007); cf. Manon v. State, 740 So. 2d 1253 (Fla. 3d DCA 1999) (“[I]t is implicit in every condition of probation that what is forbidden is a willful and substantial violation. It is not true that defendant could have had his probation revoked for an unintentional violation”). But that is not the current procedural posture of the instant case. Wurtzel v. State, 314 So. 3d 608, 611 (Fla. 3d DCA 2020) (“In an appeal of a probation revocation order, an appellate court does not have appellate jurisdiction to review the validity of the underlying restriction contained in the probation order.”).

Here, there is no probation violation or an appeal from a revocation order. Capozzi challenges the trial court’s denial of her motion to correct sentence on the basis that Conditions Seven and Eight are not standard conditions and were not orally pronounced. And in light of the text of Rule 3.986 following its amendment in 2019 (and in light of the material differences in wording between the probation order and the standard conditions listed in section 948.03), we conclude Capozzi is correct.

C. Condition Eight of the Written Probation Order

Condition eight (8) of the written probation order provides: You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.

(Emphasis added). By contrast, section 948.03(1)(c) and (h), respectively, requiring that a probationer: (c) Work faithfully at suitable employment insofar as may be possible.

(h) Support his or her legal dependents to the best of his or her ability.

6 The State’s reliance on the Florida Supreme Court’s decision in Demott v. State, 194 So. 3d 335, 340 (Fla. 2016) is misplaced. In Demott, the Court considered a certified conflict between the Fifth and Second Districts regarding whether a special condition of probation prohibiting the probationer from “associat[ing] with anyone who is illegally using drugs” was unconstitutionally vague. In contrast, here, Capozzi challenges Condition Seven as an unpronounced, special condition where it does not track the statutory language delineating standard conditions that need not be orally pronounced.

7 We do acknowledge a potential conflict among the district courts on this issue. For instance, in Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993), the appellant challenged a similar condition: “You will work diligently at a lawful occupation and support any dependents to the best of your ability, as directed by your officer.” Id. at 176 (emphasis added). As here, the appellant argued the condition “risk[ed] penalizing him for circumstances beyond his control, such as a weak economy.” Id. The Second District rejected the argument: “The caveat in the present case, that Gregory work ‘to the best of your ability,’ distinguishes it from Walls and avoids the potential for penalizing Gregory for unemployment that he did not seek or cause.” See also Reiter v. State, 674 So. 2d 189, 190 (Fla. 2d DCA 1996) (applying Gregory rationale: “Condition 8 requires Reiter to ‘work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.’”); Valente v. State, 705 So. 2d 656, 657 (Fla. 5th DCA 1998) (citing Gregory: “Appellant's probation order, which requires him to work diligently included the provision ‘to the best of your ability.’ The inclusion of such language avoids the potential that appellant will be penalized for unemployment.”); but see Kirkland v. State, 666 So. 2d 974, 976 (Fla. 1st DCA 1996) and Mathis v. State, 683 So. 2d 634, 636 n.2 (Fla. 4th DCA 1996), receded from on other grounds by Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999), (rejecting the Second District’s position in Reiter: “The second district's position is that the phrase ‘to the best of your ability’ refers to the requirement that the probationer work diligently at a lawful occupation. This is simply not a fair reading of the sentence. Our reading of the clause ‘to the best of your ability’ is that it can only refer to the requirement that the probationer support any dependents.”).

We agree with Kirkland’s analysis and construction of Condition Eight. The only reasonable construction is that the phrase “to the best of your ability” applies to and modifies only the last clause, specifically Capozzi’s obligation to “support any dependents.” To adopt the construction urged by the State would require that we apply the phrase “to the best of your ability” to modify all three preceding clauses within the sentence, resulting in a reading that requires a probationer to: - Work diligently at a lawful occupation to the best of your ability; - Advise your employer of your probation status to the best of your ability; and - Support any dependents to the best of your ability.

***

(h) Support his or her legal dependents to the best of his or her ability.

(Emphasis added). As can be seen, the phrase “to the best of your ability” is included in only one of the statutory conditions—the requirement that the probationer support his or her legal dependents.

We reverse and remand for the trial court to modify the condition consistent with this opinion. (2) “You will . . . advise your employer of your probation status. . . .”

8 The State’s reliance on Tory v. State, 686 So. 2d 689, 692 (Fla. 4th DCA 1996) is misplaced where the defendant raised a different issue than that raised here. (Arguing: “[T]he trial court erred by imposing ‘standard conditions’ of probation provided in section 948.03(1), and contained in the probation order, which were not orally pronounced at sentencing, because he was specifically placed on ‘drug offender’ probation, pursuant to section 948.01(13)(a).”).⁹ The Circuit Court of the Eleventh Judicial Circuit may wish to consider revising the forms used for its orders of probation to eliminate references to the conditions listed in the pre-2019 form in Rule 3.986, and replace it with language that more closely tracks the statutory language of the standard conditions set forth in section 948.03. Such a change would avoid any confusion regarding a probationer’s obligations and permit probation officers to better manage probationers and enforce standard conditions of probation.

At the same time, our opinion should not be read to hold that the standard conditions must be identical to the wording in section 948.03—“every detail need not be spelled out and the language should be interpreted in its common, ordinary usage.” Lawson v. State, 969 So. 2d 222, 235 (Fla. 2007). We merely “take this opportunity to encourage trial courts to be as specific as possible so that probationers are on clear notice of exactly what they are required to do and what actions will subject them to revocation.” Id.; see, e.g., Portuese v. State, 373 So. 3d 885, 891 (Fla. 4th DCA 2023).