Williams v. State

• Decision Date: 09 August 1995
• Docket Number: No. 94-01350,94-01350
• Citation: 658 So.2d 1172
• Parties: 20 Fla. L. Weekly D1812 Darryl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1172

658 So.2d 1172

20 Fla. L. Weekly D1812

Darryl WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 94-01350.

District Court of Appeal of Florida Second District.

Aug. 9, 1995.

James Marion Moorman, Public Defender, and John S. Lynch, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

The appellant, Darryl Williams, challenges the trial court's judgments and sentences. After a nonjury trial, the appellant was adjudicated guilty of burglary of a conveyance and grand theft of a firearm, in violation of sections 810.02(1) and (2)(b) and 812.014(2)(c)(3), Florida Statutes (1991). The appellant was sentenced to serve two concurrent terms of two years probation and was ordered to pay restitution. This timely appeal followed.

Although we affirm the appellant's convictions without discussion, we agree with his contention that the trial court erred by imposing certain conditions of probation.

Probation condition (4) states: "You will not possess, carry or own any firearms. You will not possess, carry, or own any weapons without first procuring the consent of your officer." Since section 790.23, Florida Statutes (1991), makes it unlawful for any person convicted of a felony to own, possess, or have in his care, custody, or control any firearm, the first sentence of condition (4) is a general condition for which no oral pronouncement is needed. Fitts v. State, 649 So.2d 300 (Fla. 2d DCA 1995). Therefore, we affirm that portion of condition (4). However, we strike the portion of condition (4) that prohibits the carrying of weapons other than those enumerated in section 790.23 since it was not orally pronounced at sentencing. Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995). We also strike the remainder of the condition which implies that a felon can possess weapons otherwise prohibited with the consent of his probation officer. Malone, 652 So.2d at 903.

Probation condition (7) states: "You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used." That portion of condition (7) which provides that appellant shall not use intoxicants to excess is a special condition of probation which must be orally pronounced at sentencing. Williams v. State, 653 So.2d 407 (Fla. 2d DCA 1995). Since it was not...