BRUCE V. CRAWFORD A/K/A BRUCE B. CRAWFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Crawford appealed his conviction and sentence as a habitual felony offender for drug-related crimes. The court reversed and remanded for resentencing, finding that the trial court may not have understood habitual offender sentencing was permissive, and that certain probation conditions were imposed without proper oral pronouncement.
The habitual offender sentence is reversed and remanded for resentencing in light of Burdick v. State establishing that habitual offender sentencing is permissive. The failure to make specific findings regarding qualifying offenses is harmless. Conditions (4) and (6) and special condition (10) are struck due to improper imposition or lack of oral pronouncement, though (6) and (10) may be reimposed with proper oral pronouncement. Attorney's fees assessment is struck and must be reassessed with notice and opportunity to be heard.
[1] Sentencing under the habitual offender statute is permissive, not mandatory.
[2] A trial court's failure to make specific findings regarding the absence of a pardon or set-aside of prior convictions is harmless error when the evidence of convictions i…
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Join FLexlaw to unlock all legal intelligence“Because the trial court did not have the benefit of the supreme court's opinion in Burdick v. State, 594 So.2d 267 (Fla.1992), which held that habitual offender sentencing is permissive, we reverse and remand Crawford's habitual offender sentence in order for the trial court to resentence Crawford in light of Burdick.”
Establishes the primary basis for reversal regarding the trial court's lack of knowledge about permissive nature of habitual offender sentencing
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Join FLexlaw to unlock all legal intelligenceCrawford was sentenced as a habitual felony offender to fifteen years' incarceration on delivery of cocaine, five years' concurrent on possession of c…
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PARKER, Judge.
Bruce Crawford seeks review of his judgment, sentence, and order of probation. He raises three issues on appeal, two of which have merit; therefore, we reverse and remand for resentencing.
Crawford was sentenced as a habitual felony offender to fifteen years’ incarceration on count one (delivery of cocaine), five years’ concurrent on count two (possession of cocaine), to be followed by fifteen years’ probation on count three (delivery of cocaine), and a concurrent probationary term of five years on count four (possession of cocaine). First, Crawford argues that his habitual offender sentence must be reversed because it is not clear that the trial court knew that sentencing under the habitual offender statute is permissive. Because the trial court did not have the benefit of the supreme court’s opinion in Burdick v. State, 594 So. 2d 267 (Fla.1992), which held that habitual offender sentencing is permissive, we reverse and remand Crawford’s habitual offender sentence in order for the trial court to resen-tence Crawford in light of Burdick.
Second, Crawford argues that the trial court erred because it failed to find by a preponderance of the evidence that the qualifying offenses necessary to sentence him as a habitual offender had not been pardoned or set aside. Because the evidence of convictions was unrebutted and Crawford does not assert now that his pri-or convictions were pardoned or set aside, any failure by the trial court to make specific findings is harmless. See State v. Rucker, 613 So. 2d 460 (Fla.1993).
Third, Crawford challenges conditions (4), (6), (7), special condition (10), and the assessment of attorney’s fees. Condition (4) was an improper condition because a convicted felon may not lawfully possess a firearm. Mercer v. State, 604 So. 2d 843 (Fla.2d DCA 1992). Condition (6), regarding the use of intoxicants, drugs, or dangerous substances, or visiting places where they are unlawfully sold, dispensed, or used; and special condition (10), regarding drug evaluation and treatment within thirty days of release from prison, are improper because the conditions were were not pronounced orally at sentencing. See Carter v. State, 606 So. 2d 680, 681 (Fla.2d DCA 1992). We, accordingly, strike conditions (4) and (6) and special condition (10) without prejudice for the trial court to reimpose conditions (6) and (10) upon oral pronouncement.
Crawford’s challenge to condition (7), regarding working diligently at a lawful occupation and supporting any dependents to the best of his ability, is without merit. Crawford was given constructive notice of this condition pursuant to section 948.03(l)(c) and (f), Florida Statutes (1989). See Tillman v. State, 592 So. 2d 767 (Fla.2d DCA 1992).
Finally, the court erred by failing to give Crawford notice and the opportunity to be heard before assessing attorney’s fees. See Williams v. State, 556 So. 2d 480 (Fla.2d DCA 1990); § 27.56, Fla.Stat. (1989). We, therefore, strike the imposition of fees without prejudice to the trial court to reimpose after notice and opportunity to be heard.
Reversed and remanded for resentencing.
FRANK, A.C.J., and BLUE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)…e was also ordered to pay for any needed treatment in the event it was determined he had a substance abuse problem. We have held that such a requirement constitutes a special condition of probation which must be orally pronounced. Crawford v. State, 616 So. 2d 1158 (Fla. 2d DCA 1993); Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992).5 Contra Navarre v. State, 608 So. 2d 525, 528 (Fla. 1st DCA 1992) (requirement that defendant receive drug evaluation and screening and any necessary treatment “is a standard c…
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Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995)…e defendant may possess a firearm with his probation officer’s permission and must be stricken because, as a convicted felon, the defendant may not lawfully possess a firearm. See Pagan v. State, 637 So. 2d 959 (Fla. 2d DCA 1994); Crawford v. State, 616 So. 2d 1158 (Fla. 2d DCA 1993). See also Grate v. State, 623 So. 2d 591 (Fla. 5th DCA 1993) (upholding the condition that the defendant not possess firearms but striking that portion which delegates the authority to approve possession by the probation officer).…
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Denson Emory Grate v. State, 623 So. 2d 591 (Fla. 5th DCA 1993)…nvicted felon, the defendant has forfeited his right to own or possess a firearm. See section 790.23(1), Florida Statutes (1991). Therefore, the probation officer cannot override this legislative mandate and grant his consent. See Crawford v. State, 616 So. 2d 1158 (Fla. 2d DCA 1993); Mercer v. State, 604 So. 2d 843 (Fla. 2d DCA 1992); Smith v. State, 396 So. 2d 206 (Fla. 2d DCA 1981). Grate also challenges the court costs imposed by the trial court in the amount of $255.00 pursuant to section 27.-3455(1) and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Mercer v. State, 604 So. 2d 843 (Fla. 2d DCA 1992)
- Carter v. State, 606 So. 2d 680 (Fla. 2d DCA 1992)
- Kuldip Singh Mundi v. State, 556 So. 2d 480 (Fla. 3d DCA 1990)
- Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990)