Malone v. State, 94-00095
| Decision Date | 22 March 1995 |
| Docket Number | No. 94-00095,94-00095 |
| Citation | 652 So.2d 902 |
| Parties | 20 Fla. L. Weekly D747 William N. MALONE, Jr. Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender and Julia Diaz, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.
William Norman Malone, Jr., appeals his judgment and sentence for grand theft. We affirm the judgment and sentence, but strike certain probation conditions because they were not orally pronounced at the sentencing hearing.
The appellant challenges probation condition four which states: The first sentence of this condition is a valid general condition under section 790.23, Florida Statutes (1991). Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995). The portion of the condition that prohibits the carrying of weapons other than those enumerated in section 790.23, was not orally pronounced at sentencing and is stricken. 20 Fla.L.Weekly D238. Further, because the remainder of the condition implies that a felon can possess weapons otherwise prohibited with the consent of his probation officer, that portion is stricken.
The appellant next challenges the portion of condition seven that states, "[y]ou will not use intoxicants to excess," on the ground it was not orally pronounced at sentencing. This is a special condition which must be orally pronounced. See Tomlinson v. State, 645 So.2d 1 (Fla.2d DCA 1994). Because it was not orally pronounced in this case, it is stricken.
Finally, the appellant challenges the portion of condition ten that requires him to submit to random alcohol testing. Condition ten is a general condition set forth in section 948.03(1)(j)1, Florida Statutes (1991), and may be imposed in any case without being orally pronounced. Tillman v. State, 592 So.2d 767 (Fla. 2d DCA 1992). The additional requirement that the appellant pay for the testing is not, however, included in the statute. Because the portion of the condition that requires the appellant to pay for testing was not orally pronounced, it is stricken. See Catholic v. State, 632 So.2d 272 (Fla. 4th DCA 1994).
Affirmed; probation conditions stricken.
To continue reading
Request your trial
-
Houston v. State, 96-02527
...or electric weapon in violation of section 790.23, but the major concern with firearms has been eliminated. In Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995), we approved the first sentence of the 1993 condition four, but struck "the portion of the condition that prohibits the carrying o......
-
McClendon v. State, 94-2571
...or not it was orally pronounced at the sentencing hearing. See Evans v. State, 653 So.2d 1103 (Fla. 2d DCA 1995); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995); Parsons v. State, 650 So.2d 176 (Fla. 2d DCA 1995); Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995); Grate v. State, 623 So.2......
-
State v. Williams
...probation. Id. (citing Curry v. State, 682 So.2d 1091 (Fla.1996); Wallace v. State, 682 So.2d 1139 (Fla. 2d DCA 1996); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995)). The State, however, argued that none of these precedent cases addressed section 948.09(6), Florida Statutes (1995), 3 wh......
-
Smith v. State, 96-03383
...which must be announced at sentencing. See, e.g., Wallace v. State, 682 So.2d 1139 (Fla. 2d DCA 1996) (drug testing); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995) (alcohol However, as we stated in our recent opinion in Williams v. State, 700 So.2d 750 (Fla. 2d DCA 1997), section 948.09......