DOLPHIS A. HAMILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hamilton appealed his conviction and sentence for trafficking in cocaine. While affirming the conviction and sentence, the court found that several probation conditions were not orally pronounced at sentencing as required, and remanded to strike those unpronounced special conditions from the written probation order.
The court affirmed the conviction and sentence but held that certain special probation conditions must be orally pronounced at sentencing. Conditions relating to alcohol use, weapon restrictions beyond those imposed by law, and drug/alcohol treatment evaluation were stricken because they were not orally pronounced, though general conditions already imposed by law (such as firearm prohibitions on felons) and conditions that were orally pronounced (such as random urinalysis) were upheld.
[1] Written conditions of probation that are not orally pronounced at sentencing must be stricken.
[2] A condition of probation prohibiting the possession of firearms is a valid general condition for a convicted felon and does not require oral pronouncement.
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Join FLexlaw to unlock all legal intelligence“certain written conditions of the appellant's probation were not orally pronounced and therefore he was deprived of an opportunity to object to any condition which he may have believed inappropriate”
Establishes the core issue that unpronounced probation conditions violate due process
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Join FLexlaw to unlock all legal intelligenceHamilton was convicted of trafficking in cocaine and sentenced to probation with written conditions. Several conditions in the written probation order…
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THREADGILL, Acting Chief Judge.
The appellant’s counsel has filed a brief in this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, we have reviewed the record and affirm the appellant’s conviction and sentence for trafficking in cocaine.
We find, however, that certain written conditions of the appellant’s probation were not orally pronounced and therefore he was deprived of an opportunity to object to any condition which he may have believed inappropriate. Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992).
Condition three prohibits the appellant from possessing, owning or carrying weapons, firearms or destructive devices. The appellant, a convicted felon, is already legally prohibited from possessing, owning or carrying firearms, therefore, that portion is a valid general condition and did not need to be orally pronounced. Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995). We strike the remaining portion of condition three relating to weapons or destructive devices because it was not pronounced at sentencing.
The portion of condition five that prohibits the use of intoxicants to excess is a special condition and should have been orally pronounced. Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994). Therefore, we strike that portion of condition five.
Condition eighteen prohibits consumption and possession, associating with people who use alcohol or illegal drugs and frequenting places where alcohol is the main source of business or where illegal drugs are used. The trial court orally prohibited the appellant from possessing or using any controlled substances, however there was no pronouncement of the portions of condition eighteen relating to alcohol. Those portions are special conditions which must be orally pronounced. Farrington v. State, 20 Fla.L.Weekly D564, — So. 2d- (Fla.2d DCA Mar. 3, 1995). Since they were not pronounced, we strike them.
Condition twenty requires evaluation and treatment at the appellant’s expense for a drug or alcohol problem. This is a special condition which was not orally pronounced, and is stricken. Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994). At sentencing, the trial court stated only that the appellant was subject to random urinalysis, which is a valid condition.
Accordingly, we affirm appellant’s judgment and sentence. We remand to the trial court to modify the written order of probation in accordance with this opinion.
Affirmed; remanded.
PARKER and WHATLEY, JJ., concur.
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Bristol v. State, 667 So. 2d 486 (Fla. 2d DCA 1996)…o. 2d 1129 (Fla. 2d DCA 1995); (2) condition 5 which prohibits the use of intoxicants to excess, Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994); (3) the portions of conditions 8, 18, and 20 which relate to the use of alcohol, Hamilton v. State, 653 So. 2d 1068 (Fla. 2d DCA 1995); (4) condition 8 which requires the appellant to pay for random drug testing, Pounds v. State, 661 So. 2d 312 (Fla. 2d DCA 1995); and (5) condition 6 which requires the appellant to report his “supervision status” to his employer.…
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Walker v. State, 660 So. 2d 332 (Fla. 2d DCA 1995)…Fla. 2d DCA 1994). On remand, the trial court is reminded that it must announce any special conditions of probation. Because probation conditions four and seven include special conditions, they must be announced at sentencing. See Hamilton v. State, 653 So. 2d 1068 (Fla. 2d DCA 1995). Convictions affirmed, sentences reversed, and remanded for resentencing. DANAHY, AC.J., and PARKER and BLUE, JJ., concur.…
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Flowers v. State, 659 So. 2d 448 (Fla. 2d DCA 1995)…ffirm Jerry Flowers’ convictions and sentences. Because they were not orally pronounced at sentencing, however, we strike the special conditions of probation found in conditions three, five, eight, eighteen, and twenty. See, e.g., Hamilton v. State, 653 So. 2d 1068 (Fla. 2d DCA 1995); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994). In addition, we strike the $288 in court costs and the $100 lab fee for the Florida Department of Law Enforcement because they were imposed without any reference to the statutory…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994)
- Fitts v. State, 649 So. 2d 300 (Fla. 2d DCA 1995)
- Porter v. State, 609 So. 2d 640 (Fla. 1st DCA 1992)
- Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992)