Cumbie v. State
| Decision Date | 30 April 1992 |
| Docket Number | No. 91-1704,91-1704 |
| Citation | 597 So.2d 946 |
| Parties | Kenneth Richard CUMBIE, Appellant, v. STATE of Florida, Appellee. 597 So.2d 946, 17 Fla. L. Week. D1148 |
| Court | Florida District Court of Appeals |
Nancy Daniels, Public Defender, Nancy L. Showalter, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., James Rogers, Asst. Atty. Gen., for appellee.
This is the third time that this criminal case has been before us for review. In Cumbie v. State, 539 So.2d 538 (Fla. 1st DCA 1989), we affirmed appellant's conviction of attempted capital sexual battery, but vacated the sentence and remanded for resentencing. In Cumbie v. State, 562 So.2d 845 (Fla. 1st DCA 1990), we affirmed the departure sentence imposed on remand, but certified as a question of great public importance whether the reason used by the trial court to justify the departure sentence was legally sufficient. The Supreme Court answered the certified question in the negative, and again vacated appellant's sentence and remanded for resentencing. Cumbie v. State, 574 So.2d 1074 (Fla.1991).
On this appeal from appellant's latest resentencing, appellant's appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which she states that, other than minor sentencing errors, she is unable to make a good-faith argument that reversible error occurred in the trial court. (Although appellant was notified of his right to file a brief in proper person, he has not done so.) Our independent review of the record convinces us that counsel is correct.
Appellant was sentenced to twelve years in prison, to be followed by eighteen years' probation. Condition (12) of the written probation order states: "You will submit to urinalysis/breathalyzer/blood tests at your own expense at any time requested by your Probation Officer." This condition was not pronounced orally at the sentencing hearing. A "special condition" of probation not pronounced orally at the sentencing hearing cannot be included in the written order. See, e.g., McCollun v. State, 586 So.2d 490 (Fla. 1st DCA 1991); Rowland v. State, 548 So.2d 812 (Fla. 1st DCA 1989). However, "standard conditions" of probation (i.e., those listed in Section 948.03(1), Florida Statutes) may be included in the written order even if they are not pronounced orally at the sentencing hearing. See, e.g., Tillman v. State, 592 So.2d 767 (Fla. 2d DCA 1992); Hayes v. State, 585 So.2d 397 (Fla. 1st DCA 1991). With the exception of the words "at your own expense" (which we conclude amount to a special condition of probation), Condition (12) of the written probation order is consistent with the standard condition of probation set forth as Section 948.03(1)(j)1., Florida Statutes (Supp.1990). T...
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Navarre v. State, 91-3880
...Florida Statutes (1988 Supp.); Hayes v. State, 585 So.2d 397, 398 (1st DCA), rev. den., 593 So.2d 1052 (Fla.1991); Cumbie v. State, 597 So.2d 946, 947 (Fla.1st DCA 1992); Ward v. State, 511 So.2d 1109 (Fla.1st DCA 1987). See also Larson v. State, 572 So.2d 1368, 1371 (Fla.1991) (absent an o......
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Justice v. State, 86264
...see, e.g., Jamail v. State, 637 So.2d 362 (Fla. 1st DCA 1994); Christobal v. State, 598 So.2d 325 (Fla. 1st DCA 1992); Cumbie v. State, 597 So.2d 946 (Fla. 1st DCA 1992); Rowland v. State, 548 So.2d 812 (Fla. 1st DCA 1989). Second District: see, e.g., Williams v. State, 653 So.2d 407 (Fla. ......
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Shaddix v. State
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Vasquez v. State
...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 t......