EJ v. State

• Decision Date: 24 March 2010
• Docket Number: No. 3D09-1597.,3D09-1597.
• Citation: 29 So.3d 348
• Parties: E.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

29 So.3d 348

E.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 3D09-1597.

District Court of Appeal of Florida, Third District.

February 10, 2010.

Rehearing Denied March 24, 2010.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.

ROTHENBERG, J.

The appellant, E.J., entered a plea of nolo contendere and an adjudication of delinquency was withheld on June 24, 2008, to burglary in Case No. J07-4252(B), grand theft in Case No. J07-7628, burglary of an unoccupied structure as a lesser included offense of burglary of a dwelling in Case No. J07-7611(C), grand theft of a firearm in Case No. J07-7473(A), criminal mischief in Case No. J07-7390(C), and burglary of an unoccupied structure as a lesser included offense of burglary of a dwelling in Case No. J07-7474(B). Based upon E.J.'s plea, the State nolle prossed numerous other counts including armed burglary (punishable by up to life in prison), and he was placed on probation.

On or about October 29, 2008, a probation affidavit was filed, alleging that E.J. violated his probation by: failing to reside in the home of his mother; violating his curfew; failing to attend school; and failing to appear for his scheduled intake at the Dade Marine Institute. The trial court conducted a probation violation hearing and found that the State proved by a preponderance of the evidence each of the violations alleged in the affidavit, and adjudicated E.J. delinquent. Although we conclude that the trial court erred in finding that E.J. violated his probation for failing to reside with his mother or to attend school, we affirm the remainder of the order under review and the finding that E.J. willfully violated his probation by failing to abide by his curfew and appear for his scheduled intake at the Dade Marine Institute.

A review of the orders placing E.J. on probation reflects that E.J. was not advised that as a condition of his probation he must live with his mother or regularly attend school. The probation order specifies that E.J. live and reside in the home of "parent(s)." E.J. testified that he lived and resided with his father when he did not live with or reside with his mother. Because his testimony was unrefuted and the probation order did not require that he live with and reside in only his mother's home, we conclude that the trial court erred when it included this ground as one of the conditions of probation E.J. violated.

Likewise, while the probation order specifically lists attending school every day as a condition of probation, this condition, unlike many of the other listed conditions of probation contained in the order, was not checked off, thereby inferring that the trial court did not intend to make school attendance a condition of E.J.'s probation. We recognize that general conditions of probation explicitly authorized or mandated by Florida Statutes need not be orally pronounced at sentencing. See State v. Hart, 668 So.2d 589, 592 (Fla.1996) (stating that "`general conditions' of probation are those contained within the statutes... and may be imposed and included in a written order of probation even if not orally pronounced at sentencing"); D.P.B. v. State, 877 So.2d 770, 772 (Fla. 4th DCA 2004) (holding that so long as a condition of probation is explicitly authorized or mandated by Florida Statutes, it is not mandatory that the trial court orally advise the defendant of the condition). However, where, as here, a juvenile probationer is given a form order of probation and some of the conditions are checked off and others are not, we conclude it was unclear, at best, that the probationer was being required to comply with the unchecked conditions.

Although we conclude that the trial court erred by finding that E.J. violated his probation by failing to reside in his mother's home and by not regularly attending school, we affirm the portion of the trial court's order finding that E.J. willfully violated his probation by failing to comply with his curfew and by...