Peterson v. State

623 So. 2d 637, 1993 Fla. App. LEXIS 9425, 1993 WL 356823

• Court: District Court of Appeal of Florida
• Decided: September 17, 1993
• Docket: No. 93-480
• Status: Published

Opinion

THOMPSON, Judge.

Steven Peterson (“Peterson”) appeals a condition of his probation that was not announced in open court. Peterson entered a plea of nolo contendere to aggravated assault with a deadly weapon. Peterson was sentenced to five years of probation with special conditions. One of the written special conditions the trial judge imposed dealt with a controlled substance, cannabis sativa, and “dangerous substances”:

The defendant shall not use cannabis sati-va. The defendant shall not use other dangerous substances unless prescribed by a physician for defendant.

This special condition of probation has two parts: the prohibition against cannabis sativa and the prohibition against “dangerous substances”. Although the first part of the special condition is duplicative of condition (5) of the standard conditions of probation,¹ it is a specific statement that Peterson not violate a state law. The second part of the special condition is not related to or connected with the crime for which Peterson was convicted and sentenced. It is also vague, since “dangerous substances” are not defined. There is nothing in the record suggesting the condition is related in any manner to the crime. Since the condition is not related to the crime, it is stricken. Biller v. State, 618 So.2d 734 (Fla.1993). The trial court also did not orally pronounce this condition of probation. This omission was error because oral conditions of probation prevail over inconsistent written conditions of probation. Anderson v. State, 616 So.2d 200 (Fla. 5th DCA 1993).

We affirm the conviction and the sentence imposed, except we remand to the trial court to delete the second part of the special condition written above.

JUDGMENT AFFIRMED; REMANDED for deletion of second part of the special condition of probation.

HARRIS, C.J., and PETERSON, J., concur.

1 . Condition (5) reads: "You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.” Use of cannabis sativa is a violation of sections 893.13(l)(a) and 893.-13(l)(g) Florida Statutes (1991).