Justice v. State, 94-501

• Decision Date: 03 March 1995
• Docket Number: No. 94-501,94-501
• Citation: 658 So.2d 1028
• Parties: 20 Fla. L. Weekly D546 Laurie G. JUSTICE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1028

658 So.2d 1028

20 Fla. L. Weekly D546

Laurie G. JUSTICE, Appellant, v. STATE of Florida, Appellee.

No. 94-501.

District Court of Appeal of Florida,

Fifth District.

March 3, 1995.

Order Granting En Banc Rehearing

and Certifying Question

July 21, 1995.

Terrence E. Kehoe, Law Offices of Terrence E. Kehoe, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

The defendant's claims of error resulting in her judgment of conviction and the length of her sentence are rejected as lacking merit. Because the state has conceded that the written judgment contains several conditions of probation not orally announced, however, in line with Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993), we remand for resolution of the discrepancy between the record of the oral pronouncement and the written order. Finding that a discrepancy exists, however, does not mean that the judge cannot impose the unannounced conditions. It merely means that if the court intends to condition probation on the written conditions not previously orally announced, it should, at "resentencing," make this intention known to the defendant and give her an opportunity to reject probation.

AFFIRMED in part; REVERSED in part and REMANDED.

THOMPSON, J., concurs.

HARRIS, C.J., concurs and concurs specially with opinion.

GRIFFIN, J., dissents with opinion.

HARRIS, Chief Judge, concurring and concurring specially.

I concur in the majority but I write to respond to the dissent's contention that the trial court, upon remand, is powerless to impose conditions not announced at the original sentencing hearing but considered essential to probation at the time the judgment was entered. All courts agree that special conditions cannot survive appeal if the defendant has not had the opportunity to object to them. In such instances, the cause must be reversed and remanded because the defendant was not given the opportunity to challenge the special conditions of probation. We disagree, however, with other appellate courts on how the problem may be corrected. The other appellate courts merely remand with directions to the sentencing court to delete the unannounced conditions from the judgment; we, on the other hand, permit the trial court, if it so desires, to conduct a new sentencing hearing so that it may properly announce and impose any conditions that it feels appropriate.

Although it is important that we know what the other appellate courts do on the issues that come before us, it is even more important that we know why. As an equal, independent court charged with the responsibility of determining what the law is in this district, we owe it to our litigants to make an independent determination. Most often we agree with the other appellate courts. But if we disagree, we should say so and explain our position. The supreme court will resolve the conflict.

Those courts that require that the unannounced conditions be stricken from the judgment do so because the "oral controls over the written." But they have not explained why the trial court cannot cure the problem by resentencing. We start from the proposition that sentencing, so long as it is within the statutory maximums, has traditionally been the province of the trial court. This is also true of resentencing after remand. Certainly the resentencing may not be used to "punish" one for taking an appeal ¹ nor may it be used (or abused) to avoid the consequences of statutory sentencing guidelines. ² Neither is the case here. A sentence is not final until rendered--reduced to writing and filed with the clerk. Fla.R.App.P. 9.020(g). Before that time, there is no sentence to "add to" or modify. This distinguishes this case from Lippman v. State, 633 So.2d 1061 (Fla.1994), and Clark v. State, 579 So.2d 109, 110 n. 3 (Fla.1991).

The imposition of unannounced conditions in the written judgment does not punish the defendant for exercising any constitutional right. The only "right" affected is the defendant's "due process" right to have the special conditions of probation announced in open court so that objections can be made. Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992). As the supreme court stated in Harris v. State, 645 So.2d 386, 388 (Fla.1994): "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Failing to announce conditions does not create a "gotcha" situation in which a trial court, on reflection prior to entry of the judgment, is precluded from imposing conditions it deems necessary even if they were not previously announced at the sentencing hearing. It merely means that the defendant must be given an opportunity to make his or her objections of record before such conditions are valid. It would be preferable if it intends to impose previously unannounced conditions for the court to call the defendant back for a new sentencing hearing prior to signing the judgment. If the court does not properly announce its special conditions, we have no alternative but to reverse for resentencing. But even after reversal, sentencing remains the trial court's function and the determination of what conditions are necessary for probation, if properly announced, should be left to it.

The dissent follows the path the supreme court took in Pope v. State, 561 So.2d 554 (Fla.1990), in which the court imposed a prophylactic rule to prevent "multiple appeals, multiple resentencings and unwarranted efforts to justify an original departure." Pope, 561 So.2d at 556. We believe that such prophylactic rules limiting the authority of the trial court should be used only in the most extreme situations. We do not see unannounced conditions of probation as a major source of appeals. And the requirement of resentencing itself, because of the trial court's heavy docket, encourages the trial court to get it right the first time. Further, we do not perceive the trial bench as resisting the requirement to orally announce special conditions. This appears to be a problem of oversight created by the volume of criminal sentencings. It might be, because of large dockets, the trial court will sometimes prefer to merely strike the unannounced condition rather than resentence. But the trial court should have the authority, if it so desires, to impose such conditions as it deems appropriate after conducting a new sentencing hearing which provides the defendant with his or her right to object to the special conditions.

GRIFFIN, Judge, dissenting.

I respectfully dissent.

The First, Second, and Fourth Districts all have held that a written order containing unannounced conditions of probation must be amended to conform to the oral pronouncement of judgment and sentence by striking the unannounced conditions. See, e.g., Bartlett v. State, 638 So.2d 631 (Fla. 4th DCA 1994); Christobal v. State, 598 So.2d 325 (Fla. 1st DCA 1992); Turchario v. State, 616 So.2d 539 (Fla. 2d DCA 1993). The lower court is not free at a resentencing to simply add the previously unannounced conditions.

As I understand our prior case law, on which Cleveland v. State was grounded, this court contemplated the possibility that where there was a discrepancy between the record of the oral pronouncement and the judgment and sentence as written down, the error might have, in fact, resided in the record of the oral pronouncement. Harden v. State, 557 So.2d 926, 927 (Fla. 5th DCA 1990) (Cobb, J., concurring). Rather than mechanically apply the "oral prevails over the written" rule by ordering the written to conform to the oral, this court has preferred to send the matter back to the trial court to verify what was, in fact, orally pronounced. This procedure has no application in cases like this one, where the court has failed to announce multiple special conditions of probation that were later included in the written order.

Although the Florida Supreme Court has not considered a case such as this where the sentencing court attempted to add unannounced conditions of probation in the original written sentence, the court has clearly held that probation conditions cannot be added to an existing sentence, absent a finding of violation of probation. Lippman v. State, 633 So.2d 1061, 1063 (Fla.1994). The addition of conditions of probation is as impermissible as any other enhancement of a previously announced sentence. Id. Just as the lower court cannot later add probation to an announced sentence, it cannot later add a condition of probation. ¹ The court has explained that the sentencing court is authorized only to modify "theretofore imposed" terms. Clark v. State, 579 So.2d 109, 110 n. 3 (Fla.1991).

An order of probation, like any other aspect of sentencing, ought not to be a sort of work in progress that the trial court can add to or subtract from at will so long as he or she brings the defendant back in and informs the defendant of the changes. To permit this would mean a lack of finality for no good reason and multiple appeals. It is not too much to ask of a sentencing judge to decide on and recite the special conditions of probation at the sentencing hearing, just as he does the balance of the sentence. If the court has omitted a condition it wishes it had imposed, its chance has passed unless the defendant violates probation.

I would follow the other districts and require the striking of unannounced special conditions of probation.

ON MOTION FOR REHEARING EN BANC AND CERTIFICATION

HARRIS, Chief Judge.

We grant appellant's Motion for En banc Rehearing and Certification.

Even though the original panel reversed her sentence, Laurie Justice, takes issue with that portion of the original opinion that remanded the matter back to the trial court for resentencing rather than merely directing that the previously unannounced conditions of probation be stricken. Because our practice is...