5D03-3807 Michael Jackson v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3807

Case Date: 03/28/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

MICHAEL JACKSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed April 1, 2005 Appeal from the Circuit Court for Hernando County, Jack Springstead, Judge. James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. CASE NO. 5D03-3807

PETERSON, J. Michael Jackson appeals his judgment and sentence for burglary of an occupied structure for which he was sentenced to twenty years in the Department of Corrections, followed by ten years probation. We find no merit in his complaint that the trial court refused t o grant additional peremptory challenges during jury selection and address

only his complaint that three conditions appeared in the written probation order that were not orally pronounced during the sentencing hearing. Special conditions of probation that are not announced orally during a sentence hearing must be stricken and may no t be reimposed at resentencing unless statutory exceptions exist. E.g., Ashley v. State, 850 So. 2d 1265 (Fla. 2003); Russman v. State , 869 So. 2d 635 (Fla. 5th DCA 2004). In certain instances a condition of probation which is statutorily authorized or mandated may be imposed and included in a written order of probation although omitted from oral pronouncements at sentencing. Hart, 668 So. 2d 589, 592 (Fla. 1996). Condition 9 of Jackson's written probation order requires him to submit to, and pay for drug testing and treatment. Submission to random drug testing and treatment is a general condition of probation1 that does not require oral pronouncement at the sentencing hearing . But, the requirement that Jackson pay for the testing and treatment is a special condition that must be orally pronounced at sentencing. The State's E.g., State v.

concession of the error requires us to strike only that portion of condition 9 that requires payment; it may not be reimposed. See, e.g., Frasilus v. State , 840 So. 2d 1117 (Fla. 5th DCA 2003) (citing Maddox v. State , 760 So. 2d 89 (Fla. 2000)); Jones v. State , 846 So. 2d 662 (Fla. 2d DCA 2003). Condition 10 of the written probation order requires Jackson to pay $1.00 to First Step, Inc., for each month of supervision, but the payment requirement was not orally pronounced at sentencing and it is not included in the list of general probation

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