Gary D. Nero v. State

District Court of Appeal of Florida

Gary D. Nero v. State

216 So. 3d 780, 2017 WL 1788016, 2017 Fla. App. LEXIS 6366

CourtDistrict Court of Appeal of Florida

DecidedMay 5, 2017

DocketCase 5D16-4038

StatusPublished

This text of 216 So. 3d 780 (Gary D. Nero v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gary D. Nero v. State, 216 So. 3d 780, 2017 WL 1788016, 2017 Fla. App. LEXIS 6366 (Fla. Ct. App. 2017).

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Opinion

PER CURIAM.

In this postconviction proceeding, Appellant challenges the order denying his Florida Rule of Criminal Procedure 3.800(a) motion on three grounds, only one of which merits discussion. In his third claim, Appellant argued that the trial court’s “ORDER OF SEX OFFENDER PROBATION” was illegal because he was not convicted of any of the enumerated felonies listed in section 948.30, Florida Statutes (2012).

The postconviction court agreed with Appellant on the merits, but nevertheless denied relief, concluding that although labeled as an “ORDER OF SEX OFFENDER PROBATION,” the actual substance of the order indicated that the only conditions applicable to Appellant were those “generic” conditions contained in the first fourteen paragraphs that “cover all [probationary] circumstances.” As for the remaining eighteen paragraphs of sex offender conditions contained within the order, the postconviction court reasoned that, with the exception of two of these sex offender conditions, the order made clear that the remaining sixteen sex offender conditions were applicable to sex offenses other than those for which Appellant was convicted.

We conclude that the postconviction court erred in not granting relief. Although we appreciate the need for efficiency in trial court proceedings, the one-size-fits-all probation order at use here imper-missibly required Appellant to decipher which of the conditions apply by, among other things, researching particular statutes to determine if they apply to his circumstances. This does not give fair notice of what is expected of Appellant. See Lawson v. State, 941 So.2d 485, 489 (Fla. *781 5th DCA 2006) (probation order should give fair notice of conduct that might result in violation). On remand, the trial court shall enter a new order that clearly delineates the conditions applicable to Appellant.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PALMER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.

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PER CURIAM.

In this postconviction proceeding, Appellant challenges the order denying his Florida Rule of Criminal Procedure 3.800(a) motion on three grounds, only one of which merits discussion. In his third claim, Appellant argued that the trial court’s “ORDER OF SEX OFFENDER PROBATION” was illegal because he was not convicted of any of the enumerated felonies listed in section 948.30, Florida Statutes (2012).

The postconviction court agreed with Appellant on the merits, but nevertheless denied relief, concluding that although labeled as an “ORDER OF SEX OFFENDER PROBATION,” the actual substance of the order indicated that the only conditions applicable to Appellant were those “generic” conditions contained in the first fourteen paragraphs that “cover all [probationary] circumstances.” As for the remaining eighteen paragraphs of sex offender conditions contained within the order, the postconviction court reasoned that, with the exception of two of these sex offender conditions, the order made clear that the remaining sixteen sex offender conditions were applicable to sex offenses other than those for which Appellant was convicted.

We conclude that the postconviction court erred in not granting relief. Although we appreciate the need for efficiency in trial court proceedings, the one-size-fits-all probation order at use here imper-missibly required Appellant to decipher which of the conditions apply by, among other things, researching particular statutes to determine if they apply to his circumstances. This does not give fair notice of what is expected of Appellant. See Lawson v. State, 941 So.2d 485, 489 (Fla. *781 5th DCA 2006) (probation order should give fair notice of conduct that might result in violation). On remand, the trial court shall enter a new order that clearly delineates the conditions applicable to Appellant.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PALMER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.

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Bluebook (online)

216 So. 3d 780, 2017 WL 1788016, 2017 Fla. App. LEXIS 6366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-d-nero-v-state-fladistctapp-2017.

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