Vasquez v. State

663 So. 2d 1343, 1995 WL 621335
District Court of Appeal of Florida·Decided October 25, 1995·No. 94-1732·Published·Cited by 23 cases

Opinion

663 So.2d 1343 (1995)

Jeffrey VASQUEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 94-1732.

District Court of Appeal of Florida, Fourth District.

October 25, 1995.

*1345 Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant, Jeffrey Vasquez (defendant), appeals his conviction for possession of cocaine and sentence of one year of drug offender probation followed by three years of probation. We address only his contention that certain probation conditions should be stricken because the trial court did not orally announce the conditions upon sentencing. In all other respects, we affirm.

Defendant challenges two conditions of both the one-year drug offender probationary period and the three-year probationary period which state:

You will neither possess, carry or own any firearms, and you will not possess, carry or own any weapons without first procuring the consent of your Officer.
You will observe a curfew from 10:00 p.m. to 6:00 a.m. daily, unless given specific permission by your Officer to leave your approved place or residence.

Additionally, he challenges another two conditions relating solely to the one-year period of drug probation which state:

You will undergo substance abuse treatment and/or education as directed by your Officer, and at your own expense, which may include residential treatment, if deemed appropriate by your officer.
You will report to your Officer daily if not employed full-time or a full-time student.

The state concedes error because the challenged conditions were not orally pronounced at the sentencing hearing. Notwithstanding the state's concession of error, we write because of the recent number of appeals seen in this court concerning the trial court's failure to orally pronounce conditions of probation at the time of sentencing which are then contained in the written conditions signed by the trial court. Apparently this problem is shared by the second district. See Hart v. State, 651 So.2d 112 (Fla. 2d DCA 1995), review granted, 659 So.2d 1089 (Fla. 1995); Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994). A brief overview of the law on this subject may be helpful in sorting out the confusion between those conditions which must be orally pronounced and those which need not.

RATIONALE FOR ORAL PRONOUNCEMENT

The requirement that special conditions of probation must be pronounced in open court at the time of sentencing is apparently derived from the requirement of Florida Rule of Criminal Procedure 3.700(b), which mandates that the sentence or other final disposition "shall be pronounced in open court." See generally Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992). The written sentence is considered merely a record of the actual sentence pronounced in open court. See Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982).

Our supreme court has never directly ruled on the issue of whether Florida Rule of Criminal Procedure 3.700 mandates oral pronouncement of conditions of probation. Nonetheless, application of the mandatory dictates of rule 3.700 to conditions of probation is logically consistent with the recent holdings of the supreme court in which it has concluded that probation should be considered to be some type of criminal sentence. In Lippman v. State, 633 So.2d 1061 (Fla. 1994), our supreme court held that because probation is a sentence, additional more restrictive conditions of probation could not be imposed without violating double jeopardy because the additional conditions enhanced the terms. In Larson v. State, 572 So.2d 1368, 1370 (Fla. 1991), the supreme court held that probation is a sentence in Florida, and in Poore v. State, 531 So.2d 161, 164 (Fla. 1988), probation was characterized as one of the "five basic sentencing alternatives."[1]

*1346 Further justifying the application of rule 3.700 to conditions of probation is that the imposition of special conditions of probation also implicates a defendant's due process rights. As noted in Olvey:

When the trial court does not pronounce a special condition in open court, the defendant has no meaningful opportunity to object to the condition at sentencing. Although a defendant may frequently be informed of an unannounced special condition of probation by a probation officer after sentencing, it would be impractical, if not impossible, to expect the defendant's attorney to preserve this error in the short time following sentencing and prior to appeal.

609 So.2d at 643.

CONFUSION OVER CONDITIONS REQUIRING ORAL PRONOUNCEMENT

Despite the general principle concerning oral pronouncement, it has been well-settled that conditions of probation which are authorized by statute, specifically including conditions of probation enumerated in section 948.03, Florida Statutes (1993), may be included in a written order without being orally pronounced at sentencing. Hart, 651 So.2d at 113; Nank, 646 So.2d at 763; Zeigler v. State, 647 So.2d 272, 273 (Fla. 4th DCA 1994); Cumbie v. State, 597 So.2d 946, 947 (Fla. 1st DCA 1992); Tillman v. State, 592 So.2d 767 (Fla. 2d DCA 1992). The legal rationale for this exception to the general rule has been stated to be that statutes provide constructive notice of their subject matter and that such notice, together with the opportunity to be heard and raise any objections at a sentencing hearing, is sufficient to satisfy the requirements of procedural due process. See Tillman; Hayes v. State, 585 So.2d 397 (Fla. 1st DCA), review denied, 593 So.2d 1052 (Fla. 1991). See also State v. Beasley, 580 So.2d 139 (Fla. 1991). This exception has been narrowly construed, thus making most conditions subject to the requirement of oral pronouncement.

We note that our supreme court recently promulgated a form order of probation, see In re Amendments to the Florida Rules of Criminal Procedure — Rules 3.140 and 3.986, 603 So.2d 1144 (Fla. 1992), which sets forth eleven conditions of probation. Also included are other conditions labeled as "special conditions" which can be checked off or filled in, with space for "additional conditions as necessary." A comparison between the form order and section 948.03 reveals that some, but not all, of the conditions in the form order are duplicative of the statutory conditions.

Judge Blue has opined in Hart that the promulgation of this form by the supreme court, together with the requirement in the rule that trial courts utilize the form, may have led trial courts to assume that those "general conditions" contained in the approved probation form order in rule 3.986 need not be orally pronounced to be valid. Questioning whether appellate courts were too strictly defining "general conditions" as only those contained in statutes, the second district in Hart, 651 So.2d at 113, and again in Emond v. State, 652 So.2d 419, 420 (Fla. 2d DCA 1995), has certified the question of whether the promulgation of the form order by the supreme court constitutes "sufficient notice to probationers of conditions 1-11 [of the form order] such that oral pronouncement of these conditions by the trial court is unnecessary."

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