Luby v. State, 93-03384
| Decision Date | 06 January 1995 |
| Docket Number | No. 93-03384,93-03384 |
| Citation | 648 So.2d 308 |
| Parties | 20 Fla. L. Weekly D138 Phillip Frank LUBY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William P. Murphy, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
The attorney for appellant, Phillip Frank Luby, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating he has found no issues of merit in the judgment and sentences entered in this case following Luby's no contest plea to charges of battery on a police officer, resisting arrest with violence, and battery. We affirm the judgment and sentences; however, our review of the record discloses that Conditions 4 and 9 of probation must be stricken and Condition 10 must be modified. We, therefore, reverse the conditions of probation which were improperly imposed and remand for further proceedings.
Condition 4 prohibits Luby from possessing, carrying or owning any weapons or firearms without first securing the consent of his probation officer. This court has held that condition implies that the defendant may possess a firearm with his probation officer's permission and must be stricken because, as a convicted felon, the defendant may not lawfully possess a firearm. See Pagan v. State, 637 So.2d 959 (Fla. 2d DCA 1994); Crawford v. State, 616 So.2d 1158 (Fla. 2d DCA 1993). See also Grate v. State, 623 So.2d 591 (Fla. 5th DCA 1993) ().
Condition 9 orders Luby to pay one dollar per month to First Step, Inc. This condition must be stricken because there is no statutory authority referenced for the imposition of those costs. See Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994); Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994). Accordingly, we strike both Conditions 4 and 9.
Condition 10 orders Luby to submit to random testing as directed by his probation officer, at his own expense, to determine the presence of alcohol or controlled substances. This condition was not orally pronounced at sentencing. Section 948.03(1)(j), Florida Statutes (1992), authorizes the imposition of the condition to submit for random drug testing; however, the additional requirement that the testing be conducted at ...
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Young v. State
...(Supp.1994), and as such constitutes a special condition of probation, which must be orally announced at sentencing. See Luby v. State, 648 So.2d 308 (Fla. 2d DCA 1995). Under these circumstances, the practice of this district is to remand to the trial court, to permit it to resolve the dis......
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Williams v. State, 93-04241
...that the testing be conducted at "the defendant's own expense," is not authorized by section 948.03(1)(j). See Luby v. State, 648 So.2d 308 (Fla. 2d DCA 1995). Therefore, we strike the words "at your own expense" from that Condition 19--"You will waive confidentiality." We conclude that con......
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Taylor v. State, 94-02850
...589 (Fla.1996); Roberson v. State, 654 So.2d 1256 (Fla. 2d DCA 1995); Hann v. State, 653 So.2d 404 (Fla. 2d DCA 1995); Luby v. State, 648 So.2d 308 (Fla. 2d DCA 1995); Nunez v. State, 633 So.2d 1146 (Fla. 2d DCA CAMPBELL, A.C.J., and PATTERSON, J., concur. ...
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Boyd v. State, 95-01637
...testing, evaluation, and treatment because they are special conditions that were not orally announced at sentencing. Luby v. State, 648 So.2d 308 (Fla. 2d DCA 1995). Additionally, we strike the portion of Condition 20 relating to alcohol evaluation and treatment because it is a special cond......