BERYL MOSLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Beryl Mosley appealed her probation sentence after pleading no contest to drug offenses, challenging various probation conditions. The Florida Fourth District Court of Appeal struck certain conditions that were not orally pronounced or violated statutory requirements, while upholding standard probation conditions that apply even without oral pronouncement.
The court struck conditions seven, four (firearm restriction), and portions of condition ten that conflicted with oral pronouncements or lacked statutory authority. The $2.00 County Resolution Criminal Justice Trust Fund fee was reversed as a discretionary cost requiring oral pronouncement. However, standard probation conditions under section 948.03(1) apply to drug offender probation without requiring oral pronouncement because defendants on such probation have constructive notice that standard conditions may be imposed.
[1] Conditions of probation not orally pronounced or statutorily mandated must be stricken from the written order.
[2] A condition requiring a probationer to inform their employer of their probationary status must be orally pronounced to be enforceable.
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Join FLexlaw to unlock all legal intelligence“conditions not announced or statutorily mandated must be stricken”
Establishes the court's standard for invalidating probation conditions that lack proper oral pronouncement or statutory authorization
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Join FLexlaw to unlock all legal intelligenceMosley entered a plea of no contest to sale and possession of cocaine and was sentenced to nine months incarceration followed by two years of drug off…
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STEVENSON, Judge.
The appellant, Beryl Mosley, entered a plea of no contest to sale and possession of cocaine. She was sentenced to nine months incarceration followed by two years “drug offender” probation. We agree with appellant that certain conditions of probation must be stricken or modified because they do not conform to the trial court’s oral pronouncements. See Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995), rev. dism. 666 So. 2d 145 (Fla.1995); See also Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994) (conditions not announced or statutorily mandated must be stricken).
We strike condition seven (that part requiring Mosley to inform her employer of her probationary status) because it was not orally pronounced. That portion of condition four providing that Mosley first procure the consent of her probation officer prior to possessing, owning or carrying a firearm is stricken. See State v. Hart, 668 So. 2d 589 (Fla.1996), We strike that portion of condition ten which requires Mosley to pay $200 public defender fees, $255 statutory court costs and $50 cost of prosecution in monthly installments. The written order improperly requires Mosley to pay those sums in “equal monthly installments,” contrary to the judge’s oral pronouncement that a judg-mént for those fees would be imposed. On remand, the trial court may enter such a judgment, as opposed to monthly installments, in its written order.1 Otherwise, these statutory conditions of probation were orally pronounced and are proper. We reverse the trial court’s assessment of a $2.00 fee for the County Resolution Criminal Justice Trust Fund. This condition of probation must be stricken as it is a discretionary cost under section 943.25(13), Florida Statutes (1993), and must be orally pronounced in open court. See Simmons v. State, 662 So. 2d 754 (Fla. 4th DCA 1995).
We reject appellant’s argument that the “standard conditions” of probation provided in section 948.03(1), Florida Statutes (1993), and contained in the probation order would not apply to her unless orally pronounced because she was specifically placed on “drug offender” probation pursuant to section 948.01(13), Florida Statutes (1993). Section 948.01(13)(a) provides that drug offender probation “may include those measures normally associated with community control.” Therefore, like a defendant placed on regular probation or community control, a defendant placed on drug offender probation is on constructive notice that some or all of the standard conditions listed in the statute may be imposed by the judge. Oral pronouncement, in either case, is not required.
We have considered the other issues raised by appellant and find no error. We remand for correction of the written order of probation consistent with this opinion.
GLICKSTEIN and KLEIN, JJ., concur. . Requiring the trial court to correct its written order to reflect a judgment entered for the costs of prosecution, public defender fees, and statutory court costs as opposed to a payment plan in "equal monthly installments," is not in conflict with the recent holding in Justice v. State, 674 So. 2d 123 (Fla.1996), that the trial court, on remand, cannot have a second opportunity to impose conditions of probation not orally pronounced in open court and thus stricken on appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Traman D. Tory v. State, 686 So. 2d 689 (Fla. 4th DCA 1996)…distinct from probation and community control since it is defined separately in section 948.001, Florida Statutes (1993), and, therefore, was required to be orally pronounced. We reject this argument. As recognized by this court in Mosley v. State, 677 So. 2d 27 (Fla. 4th DCA 1996), reh’g denied, (August 16,1996): Section 948.01(13)(a) provides that drug offender probation “may include those measures normally associated with community control.” Therefore, like a defendant placed on regular probation or com…
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Houston v. State, 701 So. 2d 372 (Fla. 2d DCA 1997)…d, the Fourth District has stricken a portion of this condition on one occasion and refused to strike it on two others. See Tory v. State, 686 So. 2d 689 (Fla. 4th DCA 1996); Hornberger v. State, 677 So. 2d 1384 (Fla. 4th DCA 1996); Mosley v. State, 677 So. 2d 27 (Fla. 4th DCA 1996). See also Vasquez v. [*375] State, 663 So. 2d 1343 (Fla. 4th DCA 1995) (pre-Hart ease striking condition four because it was not orally pronounced). The other districts have apparently not stricken this condition since the Hart d…
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Edmond A. Welborn v. State, 687 So. 2d 35 (Fla. 4th DCA 1997)…hority to an administrative agency. We reject Welbom’s argument that conditions which pertain to “probation” and “community control” do not apply to “drug offender probation.” See Tory v. State, 686 So. 2d 689 (Fla. 4th DCA 1996); Mosley v. State, 677 So. 2d 27 (Fla. 4th DCA 1996). Thus, we find that conditions (1) through (8) are statutorily imposed conditions and are contained in Florida Rule of Criminal Procedure 3.986(e). These conditions need not be orally pronounced. See State v. Hart, 668 So. 2d 589…
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Justice v. State, 674 So. 2d 123 (Fla. 1996)
- Vasquez v. State, 663 So. 2d 1343 (Fla. 4th DCA 1995)
- Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994)
- Simmons v. State, 662 So. 2d 754 (Fla. 4th DCA 1995)