RAFE EMOND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rafe Emond appeals his cocaine possession conviction, challenging whether probation conditions must be orally announced at sentencing. The court affirms the conviction but strikes or modifies three probation conditions based on recent precedent, and certifies to the Florida Supreme Court a question about whether publication of standard probation forms in the Rules of Court provides sufficient notice to eliminate the oral pronouncement requirement.
The court affirms the first sentence of condition four (prohibition on firearms) and strikes the second sentence (prohibition on weapons without consent). Condition seven is struck except for the portion prohibiting visits to places where controlled substances are unlawfully sold, dispensed, or used. Condition six is affirmed as statutorily authorized. The court certifies to the Florida Supreme Court a question of great public importance regarding whether publication of the standard probation form provides sufficient constructive notice to eliminate the oral pronouncement requirement.
[1] A statutorily authorized condition of probation may be included in a written order even if not orally pronounced at sentencing, as the statute provides constructive notic…
[2] A special condition of probation not statutorily authorized must be pronounced orally at sentencing to be valid.
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Join FLexlaw to unlock all legal intelligence“We reiterate our concern that we frequently reverse trial courts for failure to orally pronounce special conditions of probation.”
Establishes the recurring problem the appellate court is addressing in probation condition cases
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Join FLexlaw to unlock all legal intelligenceRafe Emond was convicted of possession of cocaine and sentenced to probation with conditions, including: (4) prohibition on possessing firearms or wea…
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[*420] FULMER, Judge.
The defendant, Rafe Emond, appeals his conviction for possession of cocaine. We address only his contention that probation conditions four, six and seven should be stricken because the trial court did not orally announce the conditions upon sentencing. In all other respects, his conviction is affirmed.
The challenged conditions state:
4. You will not possess, carry or own any firearm. You will not possess, carry or own any weapons without first procuring the consent of your officer. 6. You will not associate with any person engaged in any criminal activity.
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.
Pursuant to our recent decisions in Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995), and Jennings v. State, 645 So. 2d 592 (Fla.2d DCA 1994), we affirm the first sentence and strike the second sentence of condition four. We strike condition seven, except that portion prohibiting the defendant “from visiting places where certain substances are unlawfully sold, dispensed or used.” See Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994); Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). Condition six is affirmed because it is statutorily authorized by section 948.03(1)(i), Florida Statutes (1993). See Nank, 646 So. 2d 762.
We reiterate our concern that we frequently reverse trial courts for failure to orally pronounce special conditions of probation. As we stated in Hart, 651 So. 2d 112, this may be because we have defined “general conditions” too strictly. In our prior opinions we have not considered conditions four and seven to be “general conditions” because they are not included in the list of terms and conditions set forth in section 948.03(1)®. However, these conditions are included in the probation order form approved by the Florida Supreme Court and found in Florida Rule of Criminal Procedure 3.986. It would seem that publication of the Rules of Court should provide the same type of constructive notice which the supreme court found to be provided by publication of the Florida Statutes in State v. Beasley, 580 So. 2d 139 (Fla.1991). Accordingly, we again certify the following question of great public importance to the Florida Supreme Court:
DOES THE SUPREME COURT’S PROMULGATION OF THE FORM ‘ORDER OF PROBATION’ IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.986 CONSTITUTE SUFFICIENT NOTICE TO PROBATIONERS OF CONDITIONS 1-11 SUCH THAT ORAL PRONOUNCEMENT OF THESE CONDITIONS BY THE TRIAL COURT IS UNNECESSARY?
Affirmed in part, portions of probation conditions stricken, and question certified.
THREADGILL, J., concurs.
FRANK, C.J., concurs in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. Hart, 668 So. 2d 589 (Fla. 1996)…, 580 So. 2d 139, 142 (Fla.1991). For the purposes of the imposition of general conditions of probation, we find the rules of court should provide the same constructive notice to defendants subject to the imposition of probation. See Emond v. State, 652 So. 2d 419, 420 (Fla. 2d DCA 1995) (“It would seem that publication of the Rules of Court should provide the same type of constructive notice which the supreme court found to be provided by publication of the Florida Statutes in State v. Beasley, 580 So. 2d 13…1 / 2
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Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)…e 3.986 need not be orally pronounced to be valid. Questioning whether appellate courts were too strictly defining “general conditions” as only those contained in statutes, the second district in Hart, 651 So. 2d at 113, and again in Emond v. State, 652 So. 2d 419, 420 (Fla. 2d DCA 1995), has certified the question of whether the promulgation of the form order by the supreme court constitutes “sufficient notice to probationers of conditions 1-11 [of the form order] such that oral pronouncement of these condit…
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Navarrion Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997)…617 (Fla. 2d DCA 1995); Dexter v. State, 654 So. 2d 1248 (Fla. 2d DCA 1995); Heathcoe v. State, 654 So. 2d 1258 (Fla. 2d DCA 1995); Howard v. State, 652 So. 2d 956 (Fla. 2d DCA 1995); Reed v. State, 652 So. 2d 912 (Fla. 2d DCA 1995); Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995), quashed, 668 So. 2d 599 (Fla.1996); Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995). . See Weber v. State, 691 So. 2d 1 (Fla. 2d DCA 1995); Levely v. State, 685 So. 2d 847 (Fla. 2d DCA 1995); Cooper v. State, 660 So. 2d 811 (F…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995)
- Jennings v. State, 645 So. 2d 592 (Fla. 2d DCA 1994)