NAVARRION JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Navarrion Johnson appealed his conviction and sentence for home invasion robbery, challenging certain probation conditions. The court affirmed his conviction and sentence but struck the $100 investigative cost and clarified that a probation condition prohibiting possession of drugs or narcotics without a prescription is constitutional when construed to apply only to illegal drugs and prescription drugs without authorization.
The court affirmed Johnson's conviction and sentence, struck the $100 investigative cost, and upheld condition seven as constitutionally valid. The condition is valid for offenses occurring on or after June 15, 1995, as it became a statutory condition of probation under § 948.03(1)(m), Florida Statutes. The condition is construed to apply only to illegal drugs and prescription drugs possessed without authorization, not to lawful over-the-counter medications.
[1] A condition of probation prohibiting possession of drugs or narcotics unless prescribed by a physician is authorized by statute for offenses occurring on or after June 15…
[2] A statutory condition of probation must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.
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Join FLexlaw to unlock all legal intelligence“Thus, effective June 15, 1995, condition seven is a statutory condition of probation.”
Establishes that the challenged probation condition became statutory law, making prior case law rejecting it no longer controlling.
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of home invasion robbery occurring in July 1995. He received a sentence of seventy-two months' imprisonment followed by five yea…
The full statement of facts, procedural history, and disposition for this case are member content.
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ALTENBERND, Judge.
Navarrion Johnson appeals his conviction and sentence for a home invasion robbery that occurred in July 1995. We affirm his conviction and his sentence of seventy-two months’ imprisonment followed by five years’ probation. We strike the $100 imposed for investigative costs. See Mickler v. State, 682 So. 2d 607 (Fla. 2d DCA 1996); Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995). On remand, the State may seek reimposition of this cost item after complying with section 939.01, Florida Statutes (1995), as specified in Reyes. Mr. Johnson also asks this court to strike that portion of condition seven in his standard probation order prohibiting him from possessing “any drugs or narcotics unless prescribed by a physician.” On prior occasions we have stricken this condition, either because it was not orally announced,1 or because it was “vague.”2 Because of changes in the law by the supreme court and the legislature, we conclude this condition of probation is authorized for offenses occurring on or after June 15,1995.
This court en banc recently addressed condition four in the 1993 standard probation order and held that it is valid in light of the supreme court’s decision in State v. Hart, 668 So. 2d 589 (Fla.1996). Houston v. State, 701 So. 2d 372 (Fla. 2d DCA 1997). Much of the reasoning in that ease applies to this case. It is now clear that condition seven, like condition four, does not need to be orally announced at sentencing. See Ringling v. State, 678 So. 2d 1339 (Fla. 2d DCA 1996). The question remains whether it is “impermissibly vague.” Garrison v. State, 685 So. 2d 53, 55 (Fla. 2d DCA 1996).3
This court first held in Parsons v. State, 650 So. 2d 176 (Fla. 2d DCA 1995), that condition seven was vague. Parsons involved an offense that occurred prior to 1993. The language used in condition seven has now been approved by the supreme court. See Fla.B.Crim.P. 3.986(e). More important, the language is now taken from a statutory condition of probation. Section 948.03(1)(m), Florida Statutes (1995), authorizes a trial court to require, as a condition of probation or community control, that the defendant
[b]e prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician.
Section 948.03(1) states that this condition “does not require oral pronouncement at the time of sentencing and may be considered [a] standard” condition of probation. Thus, effective June 15, 1995, condition seven is a statutory condition of probation. See ch. 95-283, § 59, Laws of Fla. This court has not reviewed condition seven since it became a statutory condition. Thus, our prior eases that rejected the condition are not controlling. We are no longer evaluating language in a particular order, but rather language authorized by the legislature. At this time, we can strike condition seven only if the statute is unconstitutionally vague.
Reasonably construed, the statutory condition prohibits possession of “prescription” drugs unless prescribed by a physician. As written, however, the condition could be interpreted to prohibit a defendant’s possession of aspirin or over-the-counter antacid tablets without a doctor’s prescription.4 See Parsons, 650 So. 2d at 178. The issue is whether the possibility of an overly broad interpretation renders the statute unconstitutionally vague.
The established test for statutory vagueness is “whether the language of the statute conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” State v. Lindsay, 284 So. 2d 377, 879 (Fla.1973). It is not our role to imagine “odd scenarios” tha;; might test the limits of this statute, L.B. v. State, 700 So. 2d 370, 371-73 (Fla.1997), but rather to read the language from the perspective of the “normal reader.” Id. (quoting United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975)). Although a condition of probation is not itself a criminal offense, we conclude that a statute imposing a condition of probation must be construed favorably to the accused. See § 775.021(1), Fla.Stat. (1995). Additionally, any ambiguity in a condition imposed at sentencing will affect the state’s ability at a later date to establish a willful violation of that condition. See Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990).
This statutory condition clearly provides adequate warning to probationers to avoid illegal drugs.5 It warns them not to possess narcotics or prescription drags without a doctor’s prescription. We doubt that a typical reader of this statute would assume that a trip to the doctor was necessary before buying a legal, over-the-counter medication at the drugstore or supermarket. To avoid any possible doubt, we expressly construe this statute to apply only to illegal drags and prescription drags possessed without a doctor’s prescription. This condition does not authorize the State to seek a revocation of probation for possession of a lawful, over-the-counter medication.
Affirmed as modified.
THREADGILL, A.C.J., and LAZZARA, J., Concur. . See Raimondo v. State, 666 So. 2d 180 (Fla. 2d DCA 1995); Geeding v. State, 662 So. 2d 997 (Fla. 2d DCA 1995); Williamson v. State, 658 So. 2d 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 (Fla. 2d DCA 1995); Williams v. State, 658 So. 2d 1172 (Fla. 2d DCA 1995); Hall v. State, 661 So. 2d 63 (Fla. 2d DCA 1995); Parsons v. State, 650 So. 2d 176 (Fla. 2d DCA 1995).
. In Houston v. State, 701 So. 2d 372 (Fla. 2d DCA 1997), we noted that the other districts had not adopted our analysis of condition 4. See 701 So. 2d at 373 n. 4. The same situation appears to apply to condition seven. We have located only one case in which another district has stricken condition seven for "vagueness.” See Hurt v. State, 670 So. 2d 1144 (Fla. 1st DCA 1996). Hurt did not involve the standard condition found in the Florida Rule of Criminal Procedure 3.986(e) form probation order or an offense committed after June 15, 1995.
. This literal interpretation of standard conditions four and seven authorizes the probation officer to allow the defendant to possess a machete, but not an antibacterial cream for use on minor cuts.
. Possession of illegal drugs is already prohibited by standard condition five, which orders a probationer to "live without violating the law.”
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Ross v. State, 701 So. 2d 635 (Fla. 2d DCA 1997)…e. See Jones v. State, 348 So. 2d 942 (Fla. 2d DCA 1977). We note parenthetically that condition seven, the intoxicant condition that appellant was charged with violating, recently overcame a constitutional vagueness challenge in Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997). However, since appellant’s charged violation of condition seven was limited to the “excessive use” prohibition contained in that condition, we are not at liberty to find a violation of the remaining prohibitions contained in cond…
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Wagland v. State, 705 So. 2d 1016 (Fla. 2d DCA 1998)…ced on the conditions by a series of probation officers assigned to Wagland. “[A]ny ambiguity in a condition imposed at sentencing will affect the state’s ability at a later date to establish a willful violation of that condition.” Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997). There is no evidence in this record that Wagland initiated contact with the children, and nothing refutes the testimony that the children were dropped off, unexpectedly, at his residence. There is also no evidence refuting the t…
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McCANN v. State, 711 So. 2d 1290 (Fla. 4th DCA 1998)…nally vague. See Mitro at 645. It is not the role of the courts to imagine odd scenarios that might test limits of a statute, but rather, courts should read the language of the statute from the perspective of a “normal reader.” See Johnson v. State, 701 So. 2d 367 (Fla. 2d DCA 1997). Undefined words are construed in their plain and ordinary sense. See Mitro. Courts may refer to a dictionary to ascertain the plain meaning intended by the term. See L.B. v. State, 700 So. 2d 370 (Fla.1997). Webster’s New World…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (29 total)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- United States v. Powell, 423 U.S. 87 (U.S. 1975)
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- L.B. v. State, 700 So. 2d 370 (Fla. 1997)
- State v. Lindsay, 284 So. 2d 377 (Fla. 1973)
- Parsons v. State, 650 So. 2d 176 (Fla. 2d DCA 1995)
- Mickler v. State, 682 So. 2d 607 (Fla. 2d DCA 1996)
- Rafe Emond v. State, 652 So. 2d 419 (Fla. 2d DCA 1995)
- Stark v. State, 650 So. 2d 697 (Fla. 2d DCA 1995)
- Garrison v. State, 685 So. 2d 53 (Fla. 2d DCA 1996)