STEVEN J. MARKS
v.
STATE OF FLORIDA
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A probation condition requiring electronic monitoring cannot be imposed based on the age of victims unless the state presented evidence of that age prior to sentencing.
[1] A condition of probation requiring mandatory electronic monitoring based on the age of victims cannot be imposed if the defendant was never alleged or found to have engag…
[2] A court cannot consider evidence regarding the age of victims for the first time on remand to justify a probation condition if such evidence was not presented prior to th…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the state did not do so prior to the imposition of the sentence, the state cannot do so now.”
The court's rule that factual predicates for probation conditions must be established at sentencing, not later.
Petitioner was convicted and placed on probation with a condition requiring electronic monitoring if his victims were 15 years or younger. Petitioner …
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PER CURIAM.
Steven Marks petitions for certiorari, seeking to quash an order denying his motion to remove a condition of his probation that required him to wear an ankle monitor. He argues that the probation order contains a special condition stating that he is subject to mandatory electronic monitoring if, among other things, his victims were 15 years old or younger. He argues they were not:
Petitioner was never alleged in the Information to have had any sexual activity with any person fifteen (15) years or younger. There was never any judicial finding made by the Court at Sentencing, or at any other time, that found that the Petitioner engaged in sexual activity with anyone fifteen (15) years of age or younger. It was also never alleged or determined that the child pornography possessed by the Petitioner constituted [] images of children fifteen (15) years of age or younger involved in sexual activity.
2
In response to the petition, the state agreed that the court should grant the petition and remand the case for reconsideration of the petitioner’s request to modify his conditions of probation. We agree. On remand, the court must determine whether the state presented evidence about the age of the victims. If the state did not do so prior to the imposition of the sentence, the state cannot do so now. See, e.g., Richards v. State, 288 So. 3d 574, 576 (Fla. 2020).
Based on the foregoing, we grant the petition and quash the order.
Petition granted and order quashed. WARNER, MAY, and KUNTZ, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.