Alvarez v. State, 90-03220
| Decision Date | 22 January 1992 |
| Docket Number | No. 90-03220,90-03220 |
| Citation | 593 So.2d 289 |
| Parties | Fernando ALVAREZ, Appellant, v. STATE of Florida, Appellee. 593 So.2d 289, 17 Fla. L. Week. D320 |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
We affirm defendant's convictions for possession of cannabis over 20 grams and for conspiracy to possess cannabis over 20 grams. We disagree with his argument that a subsequent prosecution in Polk County constituted double jeopardy. Gordon v. State, 528 So.2d 910, 911 n. 2 (Fla. 2d DCA 1988), affirmed sub nom., State v. Smith, 547 So.2d 613 (Fla.1989), receded from sub nom. in part on other grounds, St. Clair v. State, 575 So.2d 243 (Fla. 2d DCA) (en banc), review denied, 582 So.2d 623 (Fla.1991). We also disagree that the sentence imposed, two years community control to be followed by three years probation, was a departure from the guidelines. Skeens v. State, 556 So.2d 1113, 1114 (Fla.1990).
However, we agree with defendant that the judgment contains a scrivener's error. On remand, the trial court should correct the judgment to indicate that defendant's convictions are for possession of cannabis over 20 grams and for conspiracy to possess cannabis over 20 grams, not the crimes for which he was originally charged.
On remand the trial court should also clarify and correct the terms of defendant's community control and probation. While it appears that the court only intended, as indicated by circled portions of form orders, to order that defendant not consume any alcohol or illegal drugs, both the defendant and the state on appeal appear to assume that the trial court imposed other conditions as well. As guidance on remand, we address as follows the propriety of all the conditions that appear to be at issue: (1) Consumption of alcohol. This condition is invalid under Edmunds v. State, 559 So.2d 415 (Fla. 2d DCA 1990), a factually analogous case. (2) Consumption of illegal drugs. Patently valid. (3) Possession of alcohol or illegal drugs. Invalid before the "or"; valid after it. Edmunds. (4) Associate with persons who use alcohol or illegal drugs. Invalid as to alcohol; too vague and capable of unintentional violation as to illegal drugs under Huff v. State, 554 So.2d 616 (Fla. 2d DCA 1989). (5) Frequent places...
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Flor v. State, 94-00868
...to excess, Williams v. State, 653 So.2d 407 (Fla. 2d DCA 1995), and from visiting places where unlawful drugs are used. Alvarez v. State, 593 So.2d 289 (Fla. 2d DCA 1992). Condition (18), which prohibits the appellant from associating with persons who use illegal drugs, must also be stricke......
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Callaway v. State, 94-00259
...from associating with persons who use illegal drugs since it is too vague and capable of unintentional violation. Alvarez v. State, 593 So.2d 289 (Fla. 2d DCA 1992). Furthermore, we strike that portion of the condition which prohibits the appellant from frequenting places where illegal drug......
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Gregory v. State, 92-01319
...opportunity to raise any objection he might have had. Regarding the claim of vagueness, Gregory relies principally upon Alvarez v. State, 593 So.2d 289 (Fla. 2d DCA 1992), and Huff v. State, 554 So.2d 616 (Fla. 2d DCA 1989). One of the conditions stricken in Alvarez involved "consumption of......
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Pratt v. State, 91-01229
..."Will not ... visit places where intoxicants and drugs are unlawfully sold, dispensed or used." As for condition 11, Alvarez v. State, 593 So.2d 289 (Fla. 2d DCA 1992) involved a similar condition and situation. Alvarez held the condition was invalid as to alcohol but valid as to illegal dr......