5D04-1357 William England v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-1357

Case Date: 08/02/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

WILLIAM ARDEN ENGLAND, Appellant, v. STATE OF FLORIDA, Appellee. CASE NO. 5D04-1357

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Opinion filed August 6, 2004 3.800 Appeal from the Circuit Court for Brevard County, John M. Griesbaum, Judge. William Arden England, Daytona Beach, pro se. Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, C.J. William Arden England appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. England argues that his sentence is illegal because the trial court failed to orally pronounce four special conditions of probation that were included in the written

probation order.1 We agree and reverse those portions of the trial court's order indicated herein.2 The 1988 sentencing documents show that the sentencing court imposed, in writing only, conditions of probation (1) prohibiting England from frequenting bars or liquor lounges without permission; (2) requiring England to obtain psychiatric/mental health counseling; (3) requiring England to attend alcohol/drug rehabilitation programs; and (4) requiring England to submit to physical and chemical examinations to determine use of controlled drugs. Although these conditions appear on the written sentencing form, a review of the sentencing transcript shows that none of these conditions was orally imposed and no attachment indicates that England agreed to the imposition of special conditions of probation as part of a plea agreement. See, e.g., Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998) (holding that special condition prohibiting defendant from practicing law was part of plea agreement and defendant waived any right to object when he entered the agreement). When these conditions are properly analyzed as special conditions of probation, the failure of the sentencing court to orally impose these special conditions at sentencing requires that they be A rule 3.800(a) motion is the proper vehicle to address a discrepancy between the oral pronouncement of a sentence and the written order of sentence. See Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004); see also Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003) (holding that written sentence that provided for probation consecutive to jail time and varied from oral pronouncement that jail time be a condition of probation was illegal sentence). But see Rinderer v. State, 857 So. 2d 955 (Fla. 4th DCA 2003) (finding that discrepancy between written and oral sentence is not cognizable in a rule 3.800(a) motion). The trial court agreed with England that another condition of probation regarding restitution had to be struck and that the written sentence imposing a 30-year term of probation had to be corrected to conform to the oral pronouncement imposing a 20-year term of probation. We affirm that portion of the order on review without further comment. 2
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stricken. See Maddox v. State, 760 So. 2d 89 (Fla. 2000); State v. Williams, 712 So. 2d 762 (Fla. 1998); Frasilus v. State, 840 So. 2d 1117 (Fla. 5th DCA 2003). When reviewing England's rule 3.800(a) motion, the trial court reached a contrary result based upon its conclusion that the four conditions challenged by England were authorized by statute and therefore were properly imposed even though they were not orally pronounced. The trial court based its conclusion on section 948.03, Florida Statutes (1987),3 which lists the general conditions of probation that need not be orally imposed and ends with the statement that "the enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper."

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