Sheffield v. StateSheffield v. State
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
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
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
Because section 948.03 is inadequate and written in legal jargon, the courts have created a standard probation order with many “special” conditions of probation, including a condition regulating the use of alcohol. See
For example, in this case, Mr. Sheffield has an extensive criminal record and a related substance abuse problem. In a complex sentencing hearing, the trial court sentenced Mr. Sheffield to fifteen years’ imprisonment as a habitual offender, followed by probation. In explaining the conditions of probation — which should become relevant only after many years of imprisonment — the trial judge described “all of the drug related conditions,” but did not expressly announce the special alcohol restriction in the standard probation form. Even though the drug and alcohol conditions are interwoven in the standard probation form and the alcohol condition could be properly imposed in this case, I reluctantly agree that the trial court must specially announce the alcohol condition in light of the existing case law and statutes. See Olvey, 609 So.2d 640.
Trial courts could impose reasonable conditions of probation without oral announcement if the legislature, after consulting with the trial bench, enacted an adequate list of basic do‘s and don‘ts for persons on probation.2 In the rare case when a standard condition was inappropriate, the trial court could orally override the statute. This procedure would be more efficient and informative than the litany of rote special conditions now imposed in virtually every circuit court.
I would suggest to the legislature that, “you will not drink any alcoholic beverage while on probation,” might be an appropriate, simple instruction that should reasonably govern the conduct of all convicted felons who have the good fortune to be on probation, rather than in prison.