Fitts v. State, 92-02374
| Decision Date | 20 January 1995 |
| Docket Number | No. 92-02374,92-02374 |
| Citation | 649 So.2d 300 |
| Parties | 20 Fla. L. Weekly D238 Samuel M. FITTS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jeanne Coleman, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and John M. Klawikofsky, Asst. Atty. Gen., Tampa, for appellee.
Samuel M. Fitts challenges the judgment and sentence for third-degree murder arising from the fatal beating of Carlos Velasquez on August 27, 1991. 1 He was adjudicated guilty and sentenced to ten years in prison followed by five years of probation. We affirm the judgment and sentence.
Special probation condition (4), reads:
You will neither possess, carry or own any weapons or firearms without first securing the consent of your Probation Officer.
We strike that portion of the condition that improperly implies that a convicted felon may possess a firearm with his probation officer's permission. Section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices. Thus, part of condition (4) is a general condition for which no oral pronouncement is needed, and we therefore affirm the portion of condition (4) prohibiting carrying, possessing, or owning firearms.
However, we strike the phrase "without first procuring the consent of your Probation Officer," because the statutory prohibition may not be waived. Jennings v. State, 645 So.2d 592 (Fla. 2d DCA 1994). We strike the general prohibition of weapons, as opposed to firearms, in condition (4) because it was not orally pronounced at sentencing.
Special probation condition (6) reads:
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.
Pursuant to Tomlinson v. State, 645 So.2d 1 (Fla. 2d DCA 1994), we strike that portion of the condition prohibiting the excessive use of intoxicants because it was not orally pronounced at sentencing.
However, the remaining part of the condition is valid as a more precise definition of a general prohibition and need not be orally pronounced. Id. See also Chitty v. State, No. 93-003431, 1994 WL 714418 (Fla. 2d DCA Dec. 28, 1994).
We therefore affirm the judgment and sentence as modified by...
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Vasquez v. State
...improperly imply that a convicted felon may possess a firearm with his probation officer's permission. Compare, e.g., Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995); Jennings v. State, 645 So.2d 592 (Fla. 2d DCA Possession of a firearm by a convicted felon is statutorily-prohibited. See S......
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McClendon v. State, 94-2571
...2d DCA 1995); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995); Parsons v. State, 650 So.2d 176 (Fla. 2d DCA 1995); Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995); Grate v. State, 623 So.2d 591 (Fla. 5th DCA 1993). Accordingly, this condition should be revised as You will not possess, ca......
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Flor v. State, 94-00868
...pronounced at sentencing and must be stricken: condition (3), which prohibits the appellant from carrying weapons, Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995); and condition (5), which prohibits the appellant from using intoxicants to excess, Williams v. State, 653 So.2d 407 (Fla. 2d D......
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Williams v. State, 93-04241
...of Condition 4 which prohibits possessing, carrying, or owning a firearm and strike the remainder of the condition. See Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995). Condition 6--"You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs, or other danger......