Jackson v. State
| Decision Date | 01 April 2005 |
| Docket Number | No. 5D03-3807.,5D03-3807. |
| Citation | 902 So.2d 193 |
| Parties | Michael JACKSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
Michael Jackson appeals his judgment and sentence for burglary of an occupied structure for which he was sentenced to twenty years in the Department of Corrections, followed by ten years probation. We find no merit in his complaint that the trial court refused to grant additional peremptory challenges during jury selection and address only his complaint that three conditions appeared in the written probation order that were not orally pronounced during the sentencing hearing.
Special conditions of probation that are not announced orally during a sentence hearing must be stricken and may not be reimposed at resentencing unless statutory exceptions exist. E.g., Ashley v. State, 850 So.2d 1265 (Fla.2003)
; Russman v. State, 869 So.2d 635 (Fla. 5th DCA 2004). In certain instances a condition of probation which is statutorily authorized or mandated may be imposed and included in a written order of probation although omitted from oral pronouncements at sentencing. E.g., State v. Hart, 668 So.2d 589, 592 (Fla.1996).
Condition 9 of Jackson's written probation order requires him to submit to, and pay for drug testing and treatment. Submission to random drug testing and treatment is a general condition of probation1 that does not require oral pronouncement at the sentencing hearing. But, the requirement that Jackson pay for the testing and treatment is a special condition that must be orally pronounced at sentencing. The State's concession of the error requires us to strike only that portion of condition 9 that requires payment; it may not be reimposed. See, e.g., Frasilus v. State, 840 So.2d 1117 (Fla. 5th DCA 2003)
(citing Maddox v. State, 760 So.2d 89 (Fla. 2000)); Jones v. State, 846 So.2d 662 (Fla. 2d DCA 2003).
Condition 10 of the written probation order requires Jackson to pay $1.00 to First Step, Inc., for each month of supervision, but the payment requirement was not orally pronounced at sentencing and it is not included in the list of general probation conditions for which no pronouncement is required.2 However, the fee is statutorily authorized.3 We must strike the requirement that Jackson pay the fee, but upon remand, it may be reimposed after Jackson receives appropriate notice and an opportunity to be heard.4 See, e.g., Hart, 668 So.2d at 592
(); Caton v. State, 862 So.2d 901 (Fla. 2d DCA 2003) (); McRae v. State, 679 So.2d 14 (Fla. 5th DCA 1996) ().
Condition 11 requires Jackson to submit to warrantless searches of his person, residence and property. This condition is statutorily authorized and does not have to be orally pronounced at the sentencing hearing to be validly imposed.5 See, e.g., Queen v. State, 832 So.2d 956 (Fla. 5th DCA 2002)
().
We affirm the judgment...
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Grubb v. State, 5D05-606.
...stricken. We consider this matter en banc to recede from a long-standing body of case law, most recently enunciated in Jackson v. State, 902 So.2d 193 (Fla. 5th DCA 2005), holding that special conditions of probation, not orally pronounced during sentencing, must be stricken and may not be ......
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Williams v. State, 2D04-2789.
...This cost was not orally announced, and it was imposed without any written citation to an authorizing statute. See Jackson v. State, 902 So.2d 193 (Fla. 5th DCA 2005); see also Caton v. State, 862 So.2d 901 (Fla. 2d DCA Finally, we note a scrivener's error in the judgment. Williams pleaded ......
- Jackson v. State, SC05-1151.