Emond v. State, 93-04060
| Decision Date | 15 March 1995 |
| Docket Number | No. 93-04060,93-04060 |
| Citation | 652 So.2d 419 |
| Parties | 20 Fla. L. Weekly D680 Rafe EMOND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and William B. Fredericks, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Johnny T. Salgado, Asst. Atty. Gen., Tampa, for appellee.
The defendant, Rafe Emond, appeals his conviction for possession of cocaine. We address only his contention that probation conditions four, six and seven should be stricken because the trial court did not orally announce the conditions upon sentencing. In all other respects, his conviction is affirmed.
The challenged conditions state:
4. You will not possess, carry or own any firearm. You will not possess, carry or own any weapons without first procuring the consent of your officer.
6. You will not associate with any person engaged in any criminal activity.
7. You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.
Pursuant to our recent decisions in Hart v. State, 651 So.2d 112 (Fla. 2d DCA 1995), and Jennings v. State, 645 So.2d 592 (Fla.2d DCA 1994), we affirm the first sentence and strike the second sentence of condition four. We strike condition seven, except that portion prohibiting the defendant "from visiting places where certain substances are unlawfully sold, dispensed or used." See Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994); Tomlinson v. State, 645 So.2d 1 (Fla. 2d DCA 1994). Condition six is affirmed because it is statutorily authorized by section 948.03(1)(i), Florida Statutes (1993). See Nank, 646 So.2d 762.
We reiterate our concern that we frequently reverse trial courts for failure to orally pronounce special conditions of probation. As we stated in Hart, 651 So.2d 112, this may be because we have defined "general conditions" too strictly. In our prior opinions we have not considered conditions four and seven to be "general conditions" because they are not included in the list of terms and conditions set forth in section 948.03(1)(i). However, these conditions are included in the probation order form approved by the Florida Supreme Court and found in Florida Rule of Criminal Procedure 3.986. It would seem that publication of the Rules of Court should provide the same type of constructive notice which the supreme court found to be provided by publication of the Florida Statutes in State v. Beasley, 580 So.2d 139 (Fla.1991...
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...(Fla. 2d DCA 1995); Howard v. State, 652 So.2d 956 (Fla. 2d DCA 1995); Reed v. State, 652 So.2d 912 (Fla. 2d DCA 1995); Emond v. State, 652 So.2d 419 (Fla. 2d DCA 1995), quashed, 668 So.2d 599 (Fla.1996); Stark v. State, 650 So.2d 697 (Fla. 2d DCA 1995).2 See Weber v. State, 691 So.2d 1 (Fl......
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..."general conditions" as only those contained in statutes, the second district in Hart, 651 So.2d at 113, and again in Emond v. State, 652 So.2d 419, 420 (Fla. 2d DCA 1995), has certified the question of whether the promulgation of the form order by the supreme court constitutes "sufficient ......
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...rules of court should provide the same constructive notice to defendants subject to the imposition of probation. See Emond v. State, 652 So.2d 419, 420 (Fla. 2d DCA 1995) ("It would seem that publication of the Rules of Court should provide the same type of constructive notice which the sup......
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