Fernandez v. State, 95-3004

• Decision Date: 05 June 1996
• Docket Number: No. 95-3004,95-3004
• Citation: 677 So.2d 332
• Parties: 21 Fla. L. Weekly D1321 Steven FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 332

677 So.2d 332

21 Fla. L. Weekly D1321

Steven FERNANDEZ, Appellant, v. STATE of Florida, Appellee.

No. 95-3004.

District Court of Appeal of Florida,

Fourth District.

June 5, 1996.

Richard L. Jorandby, Public Defender, and David McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee; and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Pursuant to a negotiated plea agreement, defendant pled nolo contendere to charges of burglary of a conveyance and grand theft, following which adjudication of guilt was withheld and probation imposed. Defendant objects to a condition of probation requiring defendant to submit to and pay the cost of random testing for urinalysis, breathalyzer and blood testing. We strike that portion of the condition of probation requiring that defendant pay the cost of testing because it was not orally pronounced and further strike that portion of the condition which authorizes alcohol testing because it bears no reasonable relationship to defendant's crime or rehabilitation in this case.

At the time of sentencing, the trial court, over defendant's objection, imposed as a condition of probation that defendant submit to random urinalysis. To this orally-pronounced condition, the trial court's subsequent written order added the requirement that defendant submit to breathalyzer and blood testing and that defendant pay the cost of any testing. ¹

The failure of the trial court to orally pronounce the condition calling for breathalyzer and blood testing does not necessarily require that it be stricken on that basis. In State v. Hart, 668 So.2d 589, 592 (Fla.1996), our supreme court agreed that a condition of probation which is statutorily-authorized may be imposed by written order of probation, even if not orally pronounced at sentencing. See, e.g., §§ 948.02-.034, Fla.Stat. (1995). In addition, Hart held that a condition set forth in conditions 1-11 of the general conditions in the supreme court's form order of probation, see Fla.R.Crim.P. 3.986(e), need not be orally pronounced. Because urinalysis, breathalyzer and blood testing are statutorily-authorized as "random testing," pursuant to section 948.03(1)(k)1, Florida Statutes (1995), ² this condition need not be stricken simply because it was not orally imposed.

While section 948.03, which enumerates the terms and conditions of probation for all forms of probation, authorizes a trial court to impose random testing, the statute does not specifically provide for a defendant to be financially responsible for the testing. See § 948.03(1)(k)1; Dean. For this reason the requirement that defendant pay the cost of testing as a condition of probation must be stricken because it was not orally pronounced. Dean v. State, 669 So.2d 1140 (Fla. 4th DCA 1996); Catholic v. State, 632 So.2d 272 (Fla. 4th DCA 1994).

The more perplexing issue presented by this appeal is whether the condition of probation requiring defendant to submit to random testing should be stricken on the alternate ground argued by defendant--that this condition is not reasonably related to defendant's crime nor to his rehabilitation. As explained in Biller v. State, 618 So.2d 734 (Fla.1993), there are two types of conditions of probation: general conditions and special conditions.

General conditions, as used in Biller, are "imposed upon most, if not all, probationers," and are "broadly directed toward supervision and rehabilitation." Id. at 735 n. 1. All other conditions are special conditions and may be imposed only if reasonably related to rehabilitation. As stated in Biller:

In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

Id. at 734-735 (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979)). See Zeigler v. State, 647 So.2d 272, 273-74 (Fla. 4th DCA 1994). A special condition of probation, when challenged on grounds of relevancy, will be upheld unless the record supports at least one of these circumstances. Biller, 618 So.2d at 735.

In Biller, where the defendant was convicted of carrying a concealed firearm, our supreme court struck a special condition of probation that the defendant not use or possess alcoholic beverages because "there was nothing connecting any use of alcohol with the crimes with which he stands convicted, and the use of alcohol by adults is legal." Id. Our supreme court further observed that there was nothing in the record suggesting the defendant had a "propensity towards alcohol or that his judgment becomes impaired as a consequence of using it." Id.

Similarly, there is nothing in this record to suggest that defendant has a drug or alcohol problem or that this condition bears some reasonable relationship to the nature of the crime or other circumstances in defendant's background. In fact, as defendant points out, the special condition that defendant "not use any intoxicants" is crossed out on the form order, and the condition, which states that defendant will "not use or possess alcoholic beverages for any purpose," was also never imposed.

We must determine whether the inclusion of random testing as a statutory condition is determinative of the question of whether it is a general condition immune from a Biller analysis or a special condition subject to a Biller relevancy analysis. On this issue we note the apparent conflict between the first and second districts.

In Nunez v. State, 633 So.2d 1146 (Fla. 2d DCA 1994), the defendant pled nolo contendere to possession of cocaine and burglary of a conveyance. Striking a condition of probation requiring alcohol testing, the second district stated:

The mere use of alcohol is not related to any of the appellant's offenses and nothing in this record indicates it would relate to future criminality. A condition of probation restricting the appellant's use of alcohol could not be legally imposed under the circumstances of this case, Biller v. State, 618 So.2d 734 (Fla.1993); Richardson v. State, 620 So.2d 257 (Fla. 2d DCA 1993); therefore, testing for the use of alcohol is not warranted. But see Hayes v. State, 585 So.2d 397 (Fla. 1st DCA), rev. denied, 593 So.2d 1052 (Fla.1991). Accordingly, we strike the portion of condition (9) requiring random testing for alcohol.

Id. at 1147.

The first district reached a contrary result in Hayes v. State, 585 So.2d 397 (Fla. 1st DCA), review denied, 593 So.2d 1052 (Fla.1991). In that case, the defendant's probationary sentence included a condition that he submit to random alcohol and drug testing. Without analyzing the relationship of the condition to the crime, the first district concluded that it is not only unnecessary to orally pronounce a statutorily-authorized condition of random testing, but that the condition of random testing could be imposed regardless of whether or not it was directly related to the crime charged:

Because the requirement that the appellant submit to blood, breathalyzer, and urinalysis examinations accords with the provision of section 948.03(1)(j) for "random testing," it is a standard condition of probation, and under the rationale of [State v.] Beasley [580 So.2d 139 (Fla.1991) ] it does not need to be orally pronounced. This standard condition may be imposed regardless of whether it is...