Sheffield v. State, 93-01818

• Decision Date: 17 February 1995
• Docket Number: No. 93-01818,93-01818
• Citation: 651 So.2d 160
• Parties: 20 Fla. L. Weekly D450 Frederick Glenn SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 160

651 So.2d 160

20 Fla. L. Weekly D450

Frederick Glenn SHEFFIELD, Appellant, v. STATE of Florida, Appellee.

No. 93-01818.

District Court of Appeal of Florida Second District.

Feb. 17, 1995.

Domingo G. Alvarez, III, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Acting Chief Judge.

The appellant brings for our review the concurrent habitualized probationary terms in two cases, Circuit Court Cases Nos. 92-3941 and 92-4034. ¹ He complains (1) that he did not receive proper credit on the probationary terms reflecting time he previously spent on probation, (2) that several special conditions in the written order of probation were not pronounced at sentencing, and (3) that the restitution ordered is improper. His first issue has no merit since the sentence he received on these two cases was not a reimposition of probation upon a revocation but an initial sentencing. Cf. Summers v. State, 625 So.2d 876 (Fla. 2d DCA 1993), approved, 642 So.2d 742 (Fla.1994) (where further probation imposed upon revocation of probation for one conviction, probation credit must be applied so that total time spent on probation does not exceed statutory maximum). His second issue, however, does have merit requiring us to reverse. We also reverse on his third issue for clarification.

Addressing the second issue, we note that the record is confused by the fact that at the sentencing hearing there were twelve cases, some of them resentencings upon revocation of probation and some initial sentencings. The trial court had also held a prior sentencing hearing which was continued so that the appellant could have a drug treatment evaluation. Unfortunately, the appellant has not provided us with a transcript of this hearing that apparently dealt with some of the restitution issues he raises here. Be that as it may, the transcript of the later hearing shows that the court, in imposing the probationary terms, stated that the appellant was to be placed in a long-term drug treatment program as a condition of probation, was to successfully complete the program, that all drug-related conditions of probation would apply, and that he was subject to warrantless searches by his probation officer and to random drug testing. The written order of probation includes the conditions orally pronounced. However, the written order additionally includes a proscription against using intoxicants to excess and visiting places where intoxicants, drugs, or dangerous substances are dispensed or used unlawfully.

The proscription against using intoxicants in the written probation order is not statutorily authorized, and thus must be orally pronounced at sentencing to be valid. Turchario v. State, 616 So.2d 539 (Fla. 2d DCA 1993); Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992); see generally Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994). Since this condition was not orally pronounced at the appellant's sentencing hearing it must be stricken. We note, in accord with Turchario, that had the trial court imposed "the same conditions as before," and had the appellant's probation conditions in his earlier cases contained alcohol-related conditions, he would be on notice of those previously imposed conditions and, if they were related to his rehabilitation, they would have been valid conditions to this probation. Id. at 540. However, the proscription against visiting places where such intoxicants are unlawfully dispensed or used is a more precise statement of section 948.03(1)(i), Florida Statutes (1993), and thus the trial court had no need to pronounce it orally. Tomlinson v. State, 645 So.2d 1 (Fla. 2d DCA 1994). As Judge Altenbernd points out in his special concurrence, the problem presented in this case most likely arose due to the disparity between the form for orders of probation in the criminal rules and section 938.03(1). Because of this continuing problem in this district between probation conditions that are special versus general, that is, those that must be orally pronounced at sentencing to be valid and those that need not, we join in the certification of the following question posed in Hart v. State, 651 So.2d 112 (Fla. 2d DCA 1995):

DOES THE SUPREME COURT'S PROMULGATION OF THE FORM "ORDER OF PROBATION" IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.986 CONSTITUTE SUFFICIENT NOTICE TO PROBATIONERS OF CONDITIONS 1-11 SUCH THAT ORAL PRONOUNCEMENT OF THESE CONDITIONS BY THE TRIAL COURT IS UNNECESSARY?

As for the third issue, the restitution imposed, we cannot reconcile the amounts announced at the sentencing hearing with the amounts shown in the written order. Since we must remand for resentencing, the trial court should clarify the restitution amounts related to the two cases appealed.

We reverse the sentencing order and remand for further proceedings in accord with this opinion.

FULMER, J., concurs.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge, concurring.

The legislature and the trial bench should understand that most appellate judges would prefer to enforce the typical condition of probation prohibiting the use of alcohol. We are frequently forced to strike this condition because the legislature has chosen not to include such a regulation of the use of alcohol among the statutory conditions of probation in section 948.03, Florida Statutes (1993). That section...