Williams v. State, 95-01051
| Decision Date | 11 October 1996 |
| Docket Number | No. 95-01051,95-01051 |
| Citation | 681 So.2d 817 |
| Parties | 21 Fla. L. Weekly D2213 Kenneth L. WILLIAMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Douglas Chanco, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
Kenneth L. Williams was convicted of robbery with a deadly weapon, a knife. He appeals his sentence, arguing that the trial court imposed two invalid conditions of probation. We affirm condition (7) because there was no contemporaneous objection at sentencing. We partially strike condition (4).
Williams challenges as vague that portion of condition (7), which was orally pronounced at sentencing, prohibiting him from possessing drugs or narcotics unless prescribed by a physician. In Parsons v. State, 650 So.2d 176 (Fla. 2d DCA 1995), this court struck that portion of condition (7) as too vague because it could be interpreted to prohibit a probationer from possessing over-the-counter cold medication or aspirin. However, Williams did not object at sentencing when the trial court imposed this condition. In Larson v. State, 572 So.2d 1368 (Fla.1991), the supreme court stated that in the absence of a contemporaneous objection, a defendant may appeal a condition of probation only if it is so egregious as to be the equivalent of fundamental error. We conclude that this condition, though vague, does not constitute fundamental error. Williams, therefore, waived any challenge to that condition by failing to contemporaneously object to its imposition.
Condition (4) provides as follows: That condition is taken verbatim from Form 3.986, Florida Rules of Criminal Procedure. Because the restrictions against firearms and weapons are contained in a general condition of probation, that condition need not be pronounced orally by the trial court. State v. Hart, 668 So.2d 589 (Fla.1996).
Further, the first sentence of condition (4) which prohibits Williams from possessing, carrying, or owning firearms obviously applies here because Williams was convicted of a felony, and felons are not permitted to possess, carry, or own firearms. See § 790.23, Fla. Stat. (1993). We, therefore, affirm the first sentence of condition (4). However, we strike the second sentence of condition (4) based upon Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995). In Malone, this court addressed condition (4) and stated:
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. 649 So.2d at 301. 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.
We strike the second sentence of condition (4); otherwise, we affirm.
I concur with the majority opinion. I write to point out to trial court judges that if they impose probation condition (4) on convicted felons as set out in Form 3.986, Florida Rules of Criminal Procedure, they must orally clarify exactly what is being imposed; otherwise, this court always will be required to strike the second sentence of condition (4).
Regarding the imposition of conditions of probation involving weapons and firearms, I conclude it is better for a trial judge to always orally pronounce what conditions it wishes to impose. I believe that it would be better not to impose probation condition (4), as set forth in Form 3.986, as a general condition by simply including it in the written sentencing order. Condition (4) should be treated differently at sentencing depending upon: (1) the defendant's felony record; (2) the crime involved; and (3) whether the trial court wishes to adjudicate or withhold adjudication of the defendant.
If the defendant before the trial court for sentencing has been convicted of an earlier felony or is convicted of a felony in the pending case, there is no need to impose the first sentence of condition (4). With the felony conviction, the defendant cannot have care, custody, possession, or control of any firearm or electric weapon or device, or carry a concealed weapon, including a tear-gas gun or chemical weapon. See § 790.23, Fla. Stat. (1995). Because commission of any of these acts by a felon would constitute a new crime, a defendant's probation may be revoked upon proper proof of a violation of section 790.23 even if the defendant was not instructed orally to obey that statute at sentencing. State v. Green, 667 So.2d 959 (Fla. 2d DCA 1996). Therefore, the first sentence of condition (4) seems unnecessary as a general condition of probation if the defendant has been convicted of a felony.
I conclude, however, that the second sentence in condition (4), "[y]ou will not possess, carry, or own weapons without procuring the consent of your officer," should be tailored to the needs of overseeing the probation of the defendant who is before the court for sentencing and should be pronounced orally. Pursuant to section 790.001(13), Florida Statutes (1995), a weapon is defined as "any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife." I note that there are several statutes prohibiting the use of weapons in certain circumstances, such as, section 790.01 (carrying concealed weapons), section 790.07 (), and section 790.17 (). Violations of these statutes are criminal offenses which, if committed by a defendant while on probation, will result in a probation violation even if there is no express condition of probation prohibiting these acts. Green. However, if the trial judge wishes to enter a condition of probation concerning use or possession of weapons different from those specifically prohibited in these statutes, I am of the opinion that the trial court should pronounce orally that condition at sentencing.
Before imposing a condition of probation involving weapons, which is not already addressed by statute, the trial court should determine if the pending crime would permit any probation conditions regarding weapons beyond what is contained in the Florida Statutes. As noted in Nank v. State, 646 So.2d 762, 763 (Fla. 2d DCA 1994):
With regard to a special condition not statutorily authorized, however, the law requires that it be pronounced orally at sentencing before it can be included in the written probation order. Cumbie [v. State ], 597 So.2d 946 [ (Fla. 1st DCA 1992) ] Such "[c]onditions not pronounced orally must be struck." George v. State, 624 So.2d 824 (Fla. 2d DCA 1993). Additionally, in order to satisfy the minimum requirements of due process, a trial court must sufficiently apprise the defendant of the "substance of each special condition" so that the defendant has the opportunity to object "to any condition which the defendant believes is inappropriate." Olvey v. State, 609 So.2d 640, 643 (Fla. 2d DCA 1992) (en banc).
If an objection is lodged, a special condition will later be...
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Houston v. State, 96-02527
...v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).2 Martin v. State, 696 So.2d 821 (Fla. 2d DCA 1997); Williams v. State, 681 So.2d 817 (Fla. 2d DCA 1996); Felix v. State, 22 Fla.L.Weekly D1458, --- So.2d ----, (Fla. 2d DCA June 13, 1997).3 Earlier case law refers to a compl......