Callaway v. State, 94-00259
| Decision Date | 07 July 1995 |
| Docket Number | No. 94-00259,94-00259 |
| Citation | 658 So.2d 593 |
| Parties | 20 Fla. L. Weekly D1585 Deldesondro CALLAWAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert D. Rosen, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Deldesondro Callaway, challenges the trial court's judgments and sentences imposed upon him after a jury found him guilty of sale of cocaine and possession of cocaine with intent to sell or deliver, in violation of section 893.13(1), Florida Statutes (1991). The appellant was adjudicated guilty and sentenced to serve two concurrent terms of three and one-half years in prison to be followed by ten years probation. This timely appeal followed.
We affirm the judgments and sentences imposed upon the appellant, however, we agree with the appellant's contention that the trial court erred by imposing certain conditions of probation and certain cost assessments.
Probation condition (3) states: "You will not possess, carry or own any weapons, firearms, or destructive devices." Since section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own or have in his care, custody, possession, or control any firearm, that portion of condition (3) prohibiting possessing, carrying, or owning firearms is a general condition for which no oral pronouncement is needed. Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995). We, therefore, affirm that portion of condition (3). However, we strike the general prohibition of weapons and destructive devices in condition (3) because it was not orally pronounced at sentencing. See Fitts, 649 So.2d at 301.
Probation condition (5) states: That portion of condition (5) which provides that appellant shall not use intoxicants to excess is a special condition of probation which must be orally pronounced at sentencing. Williams v. State, 653 So.2d 407 (Fla. 2d DCA 1995). Since it was not, it must be stricken. However, we affirm the remaining portion of that condition prohibiting appellant from visiting places where intoxicants are unlawfully sold, dispensed, or used since it is valid as a more precise definition of a general prohibition and, as such, need not be orally pronounced. Chitty v. State, 20 Fla.L.Weekly D76, --- So.2d ---- (Fla. 2d DCA Dec. 28, 1994).
Probation condition (18) states: "You shall not (consume any alcohol/illegal drugs) (be in possession of alcohol or illegal drugs) (associate with persons who use alcohol or illegal drugs) (frequent places where alcohol is the main source of business or illegal drugs are used)." Those portions of condition (18) which provide that the appellant shall not consume alcohol, possess alcohol, associate with persons who use alcohol, or frequent places where alcohol is the main source of business, are special conditions of probation which must be orally pronounced at sentencing. Williams. Since they were not orally pronounced they must be stricken. We also strike that portion of condition (18) which prohibits the appellant 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,...
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Augustin v. State
...assessment for the FDLE lab fee since the trial court failed to determine the appellant's ability to pay this fee. Callaway v. State, 658 So.2d 593 (Fla. 2d DCA 1995). Lastly, we reverse the $2 cost item imposed under section 943.25(13), Florida Statutes (1993). This cost is discretionary, ......
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Demott v. State
...court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Callaway v. State, 658 So.2d 593 (Fla. 2d DCA 1995). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we hold that Demott's special co......
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Flor v. State, 94-00868
...(Fla. 2d DCA 1994). The trial court failed to determine the appellant's ability to pay the $100 for FDLE lab work. See Callaway v. State, 658 So.2d 593 (Fla. 2d DCA 1995); Johnson v. State, 620 So.2d 791 (Fla. 1st DCA 1993). Accordingly, we strike these Affirmed in part; reversed in part. S......
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Confere v. State, 95-04386
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