Vasquez v. State

• Decision Date: 25 October 1995
• Docket Number: No. 94-1732,94-1732
• Citation: 663 So.2d 1343
• Parties: 20 Fla. L. Weekly D2384 Jeffrey VASQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1343

663 So.2d 1343

20 Fla. L. Weekly D2384

Jeffrey VASQUEZ, Appellant, v. STATE of Florida, Appellee.

No. 94-1732.

District Court of Appeal of Florida,

Fourth District.

Oct. 25, 1995.

Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

Defendant, Jeffrey Vasquez (defendant), appeals his conviction for possession of cocaine and sentence of one year of drug offender probation followed by three years of probation. We address only his contention that certain probation conditions should be stricken because the trial court did not orally announce the conditions upon sentencing. In all other respects, we affirm.

Defendant challenges two conditions of both the one-year drug offender probationary period and the three-year probationary period which state:

You will neither possess, carry or own any firearms, and you will not possess, carry or own any weapons without first procuring the consent of your Officer.

You will observe a curfew from 10:00 p.m. to 6:00 a.m. daily, unless given specific permission by your Officer to leave your approved place or residence.

Additionally, he challenges another two conditions relating solely to the one-year period of drug probation which state:

You will undergo substance abuse treatment and/or education as directed by your Officer, and at your own expense, which may include residential treatment, if deemed appropriate by your officer.

You will report to your Officer daily if not employed full-time or a full-time student.

The state concedes error because the challenged conditions were not orally pronounced at the sentencing hearing. Notwithstanding the state's concession of error, we write because of the recent number of appeals seen in this court concerning the trial court's failure to orally pronounce conditions of probation at the time of sentencing which are then contained in the written conditions signed by the trial court. Apparently this problem is shared by the second district. See Hart v. State, 651 So.2d 112 (Fla. 2d DCA 1995), review granted, 659 So.2d 1089 (Fla.1995); Nank v. State, 646 So.2d 762 (Fla. 2d DCA 1994). A brief overview of the law on this subject may be helpful in sorting out the confusion between those conditions which must be orally pronounced and those which need not.

RATIONALE FOR ORAL PRONOUNCEMENT

The requirement that special conditions of probation must be pronounced in open court at the time of sentencing is apparently derived from the requirement of Florida Rule of Criminal Procedure 3.700(b), which mandates that the sentence or other final disposition "shall be pronounced in open court." See generally Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992). The written sentence is considered merely a record of the actual sentence pronounced in open court. See Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982).

Our supreme court has never directly ruled on the issue of whether Florida Rule of Criminal Procedure 3.700 mandates oral pronouncement of conditions of probation. Nonetheless, application of the mandatory dictates of rule 3.700 to conditions of probation is logically consistent with the recent holdings of the supreme court in which it has concluded that probation should be considered to be some type of criminal sentence. In Lippman v. State, 633 So.2d 1061 (Fla.1994), our supreme court held that because probation is a sentence, additional more restrictive conditions of probation could not be imposed without violating double jeopardy because the additional conditions enhanced the terms. In Larson v. State, 572 So.2d 1368, 1370 (Fla.1991), the supreme court held that probation is a sentence in Florida, and in Poore v. State, 531 So.2d 161, 164 (Fla.1988), probation was characterized as one of the "five basic sentencing alternatives." ¹

Further justifying the application of rule 3.700 to conditions of probation is that the imposition of special conditions of probation also implicates a defendant's due process rights. As noted in Olvey:

When the trial court does not pronounce a special condition in open court, the defendant has no meaningful opportunity to object to the condition at sentencing. Although a defendant may frequently be informed of an unannounced special condition of probation by a probation officer after sentencing, it would be impractical, if not impossible, to expect the defendant's attorney to preserve this error in the short time following sentencing and prior to appeal.

609 So.2d at 643.

CONFUSION OVER CONDITIONS REQUIRING ORAL PRONOUNCEMENT

Despite the general principle concerning oral pronouncement, it has been well-settled that conditions of probation which are authorized by statute, specifically including conditions of probation enumerated in section 948.03, Florida Statutes (1993), may be included in a written order without being orally pronounced at sentencing. Hart, 651 So.2d at 113; Nank, 646 So.2d at 763; Zeigler v. State, 647 So.2d 272, 273 (Fla. 4th DCA 1994); Cumbie v. State, 597 So.2d 946, 947 (Fla. 1st DCA 1992); Tillman v. State, 592 So.2d 767 (Fla. 2d DCA 1992). The legal rationale for this exception to the general rule has been stated to be that statutes provide constructive notice of their subject matter and that such notice, together with the opportunity to be heard and raise any objections at a sentencing hearing, is sufficient to satisfy the requirements of procedural due process. See Tillman; Hayes v. State, 585 So.2d 397 (Fla. 1st DCA), review denied, 593 So.2d 1052 (Fla.1991). See also State v. Beasley, 580 So.2d 139 (Fla.1991). This exception has been narrowly construed, thus making most conditions subject to the requirement of oral pronouncement.

We note that our supreme court recently promulgated a form order of probation, see In re Amendments to the Florida Rules of Criminal Procedure--Rules 3.140 and 3.986, 603 So.2d 1144 (Fla.1992), which sets forth eleven conditions of probation. Also included are other conditions labeled as "special conditions" which can be checked off or filled in, with space for "additional conditions as necessary." A comparison between the form order and section 948.03 reveals that some, but not all, of the conditions in the form order are duplicative of the statutory conditions.

Judge Blue has opined in Hart that the promulgation of this form by the supreme court, together with the requirement in the rule that trial courts utilize the form, may have led trial courts to assume that those "general conditions" contained in the approved probation form order in rule 3.986 need not be orally pronounced to be valid. Questioning whether appellate courts were too strictly defining "general conditions" as only those contained in statutes, the second district in Hart, 651 So.2d at 113, and again in Emond v. State, 652 So.2d 419, 420 (Fla. 2d DCA 1995), has certified the question of whether the promulgation of the form order by the supreme court constitutes "sufficient notice to probationers of conditions 1-11 [of the form order] such that oral pronouncement of these conditions by the trial court is unnecessary."

To compound the confusion over which conditions should be orally pronounced, different circuits within our district, although utilizing pre-printed written forms, may not necessarily utilize the form contained in rule 3.986. While rule 3.986 provides that the promulgated forms "shall be used by all courts," it also provides that variations do not void a judgment. Nevertheless, variations from the rule 3.986 probation form order cause an additional notice problem if the conditions listed therein are not pronounced at the time of sentencing or provided to the defendant prior to sentencing to allow for an The use of the term "general conditions" to refer to those conditions which do not require oral pronouncement may also have contributed to the confusion as to which conditions require oral pronouncement and which do not. The statutory conditions which need not be orally pronounced have alternatively been labeled as either "standard," see, e.g., Cumbie, or as "general" conditions, see Hart. "Standard" conditions have referred to those conditions of probation enumerated in section 948.03, while "general" conditions include conditions contained or derived from statutes such as those dealing with firearms. Hart.

objection to be interposed. In this case, although the form for the three-year probationary period tracks the language of the rule 3.986 probation form order, the form for drug offender probation contains several additional "general" conditions not included in the rule 3.986 form.

The term "general conditions" has been utilized in yet another context by our supreme court, referring to those conditions not susceptible to a relevancy challenge on a case by case basis because they are "imposed upon most, if not all, probationers" and are "broadly directed toward supervision and rehabilitation." Biller v. State, 618 So.2d 734, 735 n. 1 (Fla.1993). The term "general conditions" in this context has a broader meaning than when the term "general conditions" is used to refer to those conditions which are statutorily-based and need not be orally pronounced to be valid conditions.

Until our supreme court rules on the certified question from the second district in Hart and Emond, we continue to adhere to the general principle that all conditions of probation must be orally pronounced at the time of sentencing unless the conditions are statutorily-authorized pursuant to section 948.03 or otherwise based on a Florida statute which will provide the defendant with constructive notice.

POSSESSION OF FIREARM/WEAPON

The first challenged written condition in this case to which defendant objects as not being orally pronounced, which is nearly identical to...