Levandoski v. State
| Decision Date | 19 April 2017 |
| Docket Number | No. 4D15–4801,4D15–4801 |
| Citation | 217 So.3d 215 |
| Parties | Michael LEVANDOSKI, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael LEVANDOSKI, Appellant,
v.
STATE of Florida, Appellee.
No. 4D15–4801
District Court of Appeal of Florida, Fourth District.
April 19, 2017
Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant
Attorney General, West Palm Beach, for appellee.
Kuntz, J.
Michael Levandoski appeals the court's order denying his post-conviction motion to correct his sentence. Levandoski argues that his written sentence was illegal because it included "sex offender probation" even though the individual components of sex offender probation were not orally pronounced at sentencing. We conclude that the court's oral pronouncement that Levandoski would be subject to "sex offender probation" was sufficient to impose each of the components. Therefore, we affirm.
We also recognize that the First District reached a different result in Snow v. State (Snow I ), 157 So.3d 559, 561 (Fla. 1st DCA 2015), clarified on remand , 193 So.3d 1091 (Fla. 1st DCA 2016), and certify conflict with that decision.
I. Factual Background
In 2010, Levandoski pleaded guilty to charges of lewd computer solicitation of a child and traveling to meet a minor for unlawful sexual activity. At sentencing, the court orally stated that "I'm going to sentence him to 48 months in the Department of Corrections on count I, followed by one year of sexual offender probation, and count II, 48 months incarceration in the department of corrections followed by 16 years of sex offender probation." The court immediately corrected itself, stating: "I'm sorry, I misspoke. ... I'm imposing one year on count one and followed by 15–year sex offender probation on count two for a total of 16 [years]."
When asked to confirm the sentence by counsel for defendant, the court stated "it's 48 months on count one, followed by a year, and then 15 years of sex offender probation on count II." Shortly thereafter, the court acknowledged sex offender probation was "available, but ... not mandatory," and that the probation "will be subject to the conditions of sex offender probation."
As a precaution, the court also pronounced that "I will make it a special condition of his probation that he is prohibited from—this is part of the sex offender probation anyway, but just to make the record clear, should there be any change in the law as of the time of his release, he's prohibited from accessing the internet, possessing a computer or any electronic device that can access the internet, and he's prohibited from having an email address or other similar type of address that allows him to participate in conversations with anyone over the internet by whatever name that may be known here or in the future until his probation is concluded." As the court stated when reviewing the sentencing transcript at the hearing on the instant motion, "it was the intent of all the parties, even defense counsel ... , that sex offender probation would be imposed" and that "it was the intent of the court and of the parties that he be imposed sex offender probation."
Three days before Levandoski was released from the Department of Corrections, the State filed a "motion to clarify conditions of sex offender probation." In the motion, the State stated that "the court sentenced the defendant on October 15, 2010 [to] one year of ‘sex offender probation’ on Count I and to 15 years ‘sex offender probation’ to run consecutive on Count II." The State also asserted that "the record is clear that the intent of the court was that the defendant should comply with all the applicable conditions of sex offender probation under [Florida Statutes section] 984.30." The State's motion to clarify was neither heard nor ruled on by the court.
Sixteen months after the State filed its motion to clarify, Levandoski filed a "motion to strike sex offender conditions of probation, or, in the alternative, to modify probation." In his motion to strike, Levandoski argued that the court did not orally pronounce the special conditions of his probation at sentencing and, therefore, he argued the sex offender probation conditions must be stricken from his sentence. The court held a hearing and concluded that...
To continue reading
Request your trial
-
Levandoski v. State
...LABARGA, C.J.This case is before the Court for review of the decision of the Fourth District Court of Appeal in Levandoski v. State , 217 So.3d 215 (Fla. 4th DCA 2017), which certified conflict with the decision of the First District Court of Appeal in Snow v. State (Snow I ), 157 So.3d 559......
-
O'Neal v. State
...on the robbery conviction as well.Applying de novo review, we agree with the defendant's arguments. See Levandoski v. State , 217 So. 3d 215, 218 (Fla. 4th DCA 2017) ("Because a sentencing error involves a pure issue of law, this court's standard of review is de novo ."). Section 775.082(1)......
-
Taylor v. State
...original sentence was deemed illegal. We agree with the defendant. We have de novo review of sentencing errors. Levandoski v. State , 217 So. 3d 215, 218 (Fla. 4th DCA 2017).The State first argues the defendant's claim on count XII is barred by the law of the case doctrine because the defen......
-
Jones v. State
...contact with or proximity to minors.While this appeal was pending, the Fourth District released its decision in Levandoski v. State, 217 So.3d 215 (Fla. 4th DCA 2017), disagreeing with the holding in Snow. "When a court clearly imposes sex offender probation as a special condition of probat......
-
Crimes
...probation were not orally pronounced at the sentencing hearing – was sufficient to impose each of the components. Levandoski v. State, 217 So. 3d 215 (Fla. 4th DCA 2017) Defendants cannot be convicted of both lewd or lascivious battery and lewd or lascivious molestation arising out of the s......
-
Judgment and sentence
...probation were not orally pronounced at the sentencing hearing—was sufficient to impose each of the components. Levandoski v. State, 217 So. 3d 215 (Fla. 4th DCA 2017) Trial court erred in denying the defendant’s petition to seal his criminal record related to two counts he was charged with......