Cleveland v. State
| Citation | 617 So.2d 1166 |
| Decision Date | 21 May 1993 |
| Docket Number | No. 92-1689,92-1689 |
| Parties | 18 Fla. L. Week. D1288 Marlette Evette CLEVELAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James B. Gibson, Public Defender, and Susan A. Fagan, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Myra J. Fried, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant, Marlette Evette Cleveland, timely appeals her sentence for aggravated battery.
Cleveland entered a written plea of no contest to aggravated battery with the agreement that the State would recommend one year of probation if appellant had no priors.
At sentencing, Cleveland was adjudged guilty of aggravated battery and placed on two years of community control. The judge assessed court costs in the amount of $225. The judgment placing Cleveland on community control contains several special conditions. A portion of the judgment to be signed by the defendant provides:
I acknowledge receipt of a copy of this order and that the conditions have been explained to me.
Cleveland never signed this acknowledgment.
Cleveland argues that the trial court erred in imposing twenty-three conditions of community control, including court costs, without announcing these conditions orally at the sentencing hearing. She specifically takes exception to the following conditions:
(4) You will neither possess, carry or own any weapons or firearms;
(6) You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used;
(10) You will perform hours of public service work/alternative community service work as directed by your community control officer;
(14) You will participate in self-improvement programs as determined by the Court or your Community Control Officer; and (17) The court retains jurisdiction to place you in the probation and restitution center upon recommendation of your community control officer without a finding of violation of community control.
The State responds that the trial court is not required to orally pronounce conditions at trial, or in the alternative, that only special conditions need be announced.
Section 948.03, Florida Statutes, lists certain standard conditions of probation or community control which a trial court may impose, but, of the conditions imposed in Cleveland's case, only community service is specifically provided for by statute.
Only one case from this court appears to briefly address this issue. In Anderson v. State, 616 So.2d 200 (Fla. 5th DCA1993), this court reviewed an Anders appeal and held:
In Case No. 91-3180, the trial court imposed a special condition of community control, requiring appellant to keep a daily journal and provide it to her community control officer upon request. This condition was not orally pronounced at sentencing. The state has not conceded error. Therefore the sentence is vacated and the cause is remanded to the trial court for resolution of the discrepancy. See O'Neal v. State, 566 So.2d 375 (Fla. 5th DCA1990); Lester v. State, 563 So.2d 178 (Fla. 5th DCA1990).
In both Lester (absent concession by the State) and O'Neal, sentences were vacated and the cases were remanded to the trial judge because a factual dispute existed as to what sentence the judge actually intended. These cases are not directly in point.
The Second District in Olvey v. State, 609...
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Justice v. State, 94-501
...that the written judgment contains several conditions of probation not orally announced, however, in line with Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993), we remand for resolution of the discrepancy between the record of the oral pronouncement and the written order. Finding that......
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Brooks v. State, 94-1347
...sentencing. Any discrepancy between oral pronouncements and written sentencing orders must be resolved on remand. See Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993). See also Anderson v. State, 616 So.2d 200 (Fla. 5th DCA 1993). Also, the trial court failed to reference the statutor......
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McClendon v. State, 94-2571
...at sentencing and its inclusion in the written conditions is a discrepancy which can be remedied on remand. See Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993). Accordingly, we remand this cause to the trial court for the sole purpose of resolving this AFFIRMED IN PART; MODIFIED IN P......
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Bledsoe v. State, 94-2288
...so the defendant has an opportunity to object to their imposition. Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994); Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993). In this case, Bledsoe received a written copy of the conditions at his sentencing in 1989, and he was orally told that ......