Houston v. State, 96-02527

Decision Date24 October 1997
Docket NumberNo. 96-02527,96-02527
Parties22 Fla. L. Weekly D2483 George HOUSTON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Page 372

701 So.2d 372
22 Fla. L. Weekly D2483
George HOUSTON, Appellant,
v.
STATE of Florida, Appellee.
No. 96-02527.
District Court of Appeal of Florida,
Second District.
Oct. 24, 1997.

Page 373

James Marion Moorman, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Barrow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

In this Anders 1 appeal, we affirm George Houston's convictions and sentences. Because his brief argues that condition four in the standard 1993 order of probation must be stricken, we take this opportunity to recede from those cases after State v. Hart, 668 So.2d 589 (Fla.1996), in which this court has stricken the condition, 2 and hold that it may be imposed without oral announcement in all cases involving convicted felons.

From as early as 1981 to approximately 1995, 3 condition four in most probation orders stated: "You will not possess, carry or own any weapons or firearms without first securing the consent of your probation officer" (hereinafter referred to as the "earlier condition four").

Effective January 1, 1993, the supreme court approved a standard probation order, which modified condition four and divided it into two sentences. In re Amendments to Fla. Rules of Crim. P., 606 So.2d 227, 355 (Fla.1992). The condition four approved by the supreme court states: "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" (hereinafter referred to as the "1993 condition four"). Fla.R.Crim.P. 3.986 (1993).

In 1981, this court struck the earlier condition four on the theory that it allowed a probation officer to authorize a person on probation to commit a criminal act. Smith v. State, 396 So.2d 206 (Fla. 2d DCA 1981). We stated:

In addition, standard condition 4 of appellant's probation requires that she not possess, carry or own any weapons or firearms "without first securing the consent of your Probation Officer." This condition must be stricken. Under section 790.23, Florida Statutes (1979), which prohibits a convicted felon from owning, possessing, or controlling any electric weapons or firearms, there is no authority for appellant's probation officer to consent to what would otherwise be a violation of the statute.

Id. at 207.

Although the earlier condition four was apparently used statewide, the other four districts never relied on the reasoning in Smith to strike the condition, but they have never expressly conflicted with Smith. 4 The reasoning in Smith was subject to criticism because, even if a probation officer told a convicted felon that he or she could carry a firearm without violating probation, the act of carrying the firearm would still be a violation of section 790.23, Florida Statutes. 5 Moreover, by striking all portions of the condition, we inadvertently left a probation officer with no authority to regulate a probationer's possession of the wide array of "weapons" that, under section 790.001(13), are lawful for a convicted felon to possess.

Page 374

Despite these weaknesses in Smith, this court continued to adhere to its holding. See e.g., Pagan v. State, 637 So.2d 959 (Fla. 2d DCA 1994); Mercer v. State, 604 So.2d 843 (Fla. 2d DCA 1992); Beckner v. State, 604 So.2d 842 (Fla. 2d DCA 1992); Hinton v. State, 439 So.2d 1008 (Fla. 2d DCA 1983).

In Jennings v. State, 645 So.2d 592 (Fla. 2d DCA 1994), which involved earlier condition four, Judge Campbell attempted to narrow the remedy in Smith. Noting that earlier condition four implied that a probation officer could grant consent to a convicted felon to "possess a firearm," the court "struck that portion of the condition referring to the consent of the probation officer." Jennings, 645...

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6 cases
  • Johnson v. State, 96-02641
    • United States
    • Florida District Court of Appeals
    • October 24, 1997
    ...order and held that it is valid in light of the supreme court's decision in State v. Hart, 668 So.2d 589 (Fla.1996). Houston v. State, 701 So.2d 372 (Fla. 2d DCA 1997). Much of the reasoning in that case applies to this case. It is now clear that condition seven, like condition four, does n......
  • Woods v. State, 96-02024
    • United States
    • Florida District Court of Appeals
    • April 15, 1998
    ...of sixteen. The condition barring Woods from firearms without the consent of his probation officer is appropriate, see Houston v. State, 701 So.2d 372 (Fla. 2d DCA 1997), and the condition prohibiting Woods from using alcohol and drugs is authorized for offenses, such as here, occurring on ......
  • Carlton v. Carlton, 2D01-893.
    • United States
    • Florida District Court of Appeals
    • May 17, 2002
    ... ... in all proceedings that the intent of this provision was payment for an education in a state-supported 816 So.2d 256 university or the equivalent. The Former Wife and daughter, believing the ... ...
  • Simpson v. State, 95-04039
    • United States
    • Florida District Court of Appeals
    • October 24, 1997
    ...conditions were published in the Florida Rules of Criminal Procedure. See State v. Hart, 668 So.2d 589 (Fla.1996); Houston v. State, 701 So.2d 372 (Fla. 2d DCA 1997). Finally, we strike the $2 cost imposed under section 943.25(13), Florida Statutes (1995), which was not orally pronounced at......
  • Request a trial to view additional results

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