Opinion
No. 4D2022-2935
10-25-2023
Samantha Nichole PORTUESE, Appellant, v. STATE of Florida, Appellee.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Paul Patti III, Senior Assistant Attorney General, West Palm Beach, for appellee.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Lawrence M. Mirman, Judge; L.T. Case No. 56202018CF000783.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Paul Patti III, Senior Assistant Attorney General, West Palm Beach, for appellee.
Levine, J.
The appellant, Samantha Nichole Portuese, appeals her no contest plea to four counts of giving false information to a pawnbroker for less than $300, four counts of dealing in stolen property, and one count of burglary of a conveyance. Appellant was sentenced to ten years in prison followed by five years of drug offender probation. We reverse certain special conditions of probation imposed on appellant. As to all other issues, we affirm without further comment.
[1–3] There are both general and special conditions of probation. Trial judges are required to pronounce special conditions at sentencing:
General conditions, which are contained within the Florida Statutes, must be included within the order but need not be orally pronounced at the sentencing hearing. Special conditions, which are those not specifically authorized by statute, must be orally pronounced at sentencing before they can be placed in the probation order. The reason for the distinction relates to due process, such that a probationer is imputed with notice as to those conditions that are based upon statute but not as to those conditions that were uniquely drafted for purposes of his or her probation. Thus, in order to satisfy due process and provide a probationer with adequate notice, the trial court must orally pronounce any special condition at sentencing.
Lawson v. State, 969 So. 2d 222, 227 n.3 (Fla. 2007) (citations omitted). When a special condition of probation is not orally pronounced at sentencing, it must be stricken on remand. See Vasguez v. State, 663 So. 2d 1343, 1348 (Fla. 4th DCA 1995) ("We conclude that the inclusion of this special condition of probation that was not orally pronounced at sentencing mandates that we strike the condition.").
Appellant objects to the following conditions of probation: (A) condition 19, requiring appellant to submit to urinalysis testing on a random basis to determine the presence of alcohol or illegal drugs; (B) condition 17, prohibiting appellant from using, possessing, or consuming alcohol and illegal drugs, as well as from associating with anyone illegally using alcohol or drugs; (C) condition 21, submitting appellant to random, warrantless searches by her probation officer and/or law enforcement; (D) condition 15, requiring appellant to undergo a substance abuse evaluation at her own expense and successfully complete any treatment and education determined to be necessary; (E) condition 16, imposing a curfew on appellant between 10:00 p.m. and 6:00 a.m.; (F) condition 20, prohibiting appellant from visiting an establishment where the primary business is the sale and dispensing of alcohol; (G) condition 22, requiring appellant to attend a support group with a focus on substance abuse issues at least two times per week; and (H) the requirement that appellant pay costs due in equal monthly installments.
(A) Condition 19
[4–6] Appellant argues that condition 19, requiring appellant to "submit to urinalysis testing on random basis to determine the presence of alcohol or illegal drugs," is a special condition requiring oral pronouncement at sentencing. Appellant claims that section 948.03(1)(l)(1) would be the appropriate general condition, which permits "random testing as directed by the probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances" as a general condition of probation. However, as noted by the state, appellant was sentenced to drug offender probation, which includes "random drug testing." § 948.20(2), Fla. Stat. (2018). Thus, condition 19 is a general condition of drug offender probation which does not require oral pronouncement at sentencing. We affirm condition 19 of appellant’s probation.
The portion of the condition requiring appellant to pay for random drug testing is a special condition requiring oral pronouncement at sentencing. See Cale v. State, 932 So. 2d 1123, 1125 (Fla. 4th DCA 2006). However, appellant did not raise this issue on appeal; therefore this claim has been abandoned. J.A.B. Enters. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992).
(B) Condition 17
[7] Condition 17 of appellant’s probation says: "You will not use, possess or consume alcohol or illegal drugs, and you will not associate with anyone who is illegally using drugs or consuming alcohol." Appellant argues that this condition should be partially stricken to remove the part of the condition prohibiting her from using alcohol, or associating with persons using alcohol, as it was a special condition not orally pronounced at sentencing. The state argues that the latter part of the condition, prohibiting appellant from associating with those using alcohol or drugs illegally, is a general condition which does not require oral pronouncement.
"Not associat[ing] with persons engaged in criminal activities" is a general condition of probation for which oral pronouncement is not required. § 948.03(1)(k), Fla. Stat. (2018). Because the latter portion of the condition prohibited appellant from associating with those using alcohol or drags illegally, and prohibiting association with persons engaged in criminal activities is a general condition, this did not require oral pronouncement at sentencing and does not need to be stricken on remand.
[8] However, prohibiting appellant from consuming alcohol is a special condition requiring oral pronouncement. See Brock v. State, 688 So. 2d 909, 912 (Fla. 1997) (noting that prohibiting the consumption of alcohol was a special condition). Thus, because this special condition was not orally pronounced at sentencing, this part of the condition must be stricken on remand. Condition 17 need only be partially stricken to remove the portion of the condition prohibiting appellant from consuming alcohol. See Fernandez v. State, 677 So. 2d 332, 385 (Fla. 4th DCA 1996) (partially striking a condition of probation that was a special condition requiring oral pronouncement). (C) Condition 21
[9] Condition 21 of appellant’s probation states: "It is the specific intent of the Court that you will also be subject to random, warrantless searches and seizures of your person, then current location and/or residence, and of your vehicle by probation officers and/or law enforcement." Section 948.03(1)(b) lists "[p]ermit[ting] the probation officer to visit him or her at his or her home or elsewhere" as a general condition of probation. Thus, a condition allowing warrantless searches by a probation officer is not a special condition and need not be orally pronounced. Harrell v. State, 162 So. 3d 1128, 1131 (Fla. 4th DCA 2015); Ayoub v. State, 901 So. 2d 311, 313 (Fla. 2d DCA 2005) ("[P]robation officers must be able to conduct warrantless searches in order to properly supervise their probationers.") (quoting Brown v. State, 697 So. 2d 928, 929 (Fla. 2d DCA 1997)).
[10, 11] "[A] law enforcement officer is permitted to accompany a probation officer on an administrative search for the protection of probation personnel." Newton v. State, 31 So. 3d 892, 895 (Fla. 4th DCA 2010). However, "[n]either the statute nor the rule authorizes a law enforcement officer to visit a probationer for an administrative search without the presence of his or her probation officer." Id. at 894; see also Bowman v. State, 335 So. 3d 135, 137 (Fla. 4th DCA 2022) ("[A]n order of probation cannot require a probationer to submit at any time to warrantless searches by law enforcement officers other than his or her probation officer.") (citing Grubbs v. State, 373 So. 2d 905, 909 (Fla. 1979)). The proper remedy is to strike the portion of condition 21 permitting a law enforcement officer to conduct a warrantless search of appellant. Newton, 31 So. 3d at 895.
(D) Condition 15
[12] Condition 15 of appellant’s probation requires appellant to undergo a substance abuse evaluation at her own expense, and successfully complete any treatment and education determined to be necessary. The state concedes that this condition is a special condition and is controlled by Cole, 932 So. 2d at 1125. Thus, because this condition was a special condition not orally pronounced at sentencing, condition 15 must be stricken on remand.
(E) Condition 16
[13] Condition 16 of appellant’s probation reads: "You will remain at your approved residence between 10pm and 6am due to a curfew imposed unless otherwise directed for approved employment, school, public service work, or any other special activities approved by your officer." The state also concedes that there is existing precedent determining that this condition requires oral pronouncement. Cole, 932 So. 2d at 1124-25 ("[C]onditions which must be orally pronounced include curfew and substance abuse treatment requirements in drug offender probation cases."); Vasquez v. State, 663 So. 2d 1343, 1348 (Fla. 4th DCA 1995) (striking curfew condition that was not orally pronounced at sentencing). Thus, in accordance with this existing precedent, condition 16 must be stricken.
(F) Condition 20
[14] Condition 20 of appellant’s probation prohibits appellant from visiting any establishment where the primary business is the sale and dispensing of alcoholic beverages. The state concedes that this issue is controlled by Steward v. State, 677 So. 2d 1369, 1369 (Fla. 4th DCA 1996), which says "[b]ecause the condition prohibiting Appellant from entering establishments whose primary business is the sale of alcoholic beverages is a special condition not statutorily authorized under sections 948.03-.04, Florida Statutes, it must be orally pronounced at sentencing in order to be valid." In accordance with this existing precedent, condition 20 must also be stricken on remand.
(G) Condition 22
[15] Condition 22 of appellant’s probation requires her to attend a support group with a focus on substance abuse issues at least two times per week. The state concedes that this unannounced special condition should be stricken on remand. See Dean v. State, 669 So. 2d 1140 (Fla. 4th DCA 1996) (striking unannounced special condition of probation requiring defendant to attend and successfully complete a rehabilitation program). As a special condition that was not orally pronounced at sentencing, condition 22 must be stricken on remand.
(H) The Requirement That Appellant Pay Costs in Equal Monthly Installments
[16, 17] Lastly, appellant argues that the condition of her probation requiring her to pay costs in equal monthly installments must be stricken because it does not match what the trial court stated at sentencing. At sentencing, the trial judge pronounced that the court costs and fees would be payable "[o]ver the period of supervision." "[A] court’s oral pronouncement of sentence controls over the written document." Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003). Thus, the condition of appellant’s probation ordering her to pay costs, fees, and fines in equal monthly installments must be corrected to match the trial judge’s oral pronouncement at sentencing, that costs, fees, and fines would be payable "[o]ver the period of supervision."
In sum, we reverse and remand to strike conditions 15, 16, 20, and 22 of appellant’s probation. We reverse and remand to partially strike condition 17, specifically to remove the portion of the condition prohibiting appellant from possessing or consuming alcohol, and condition 21, specifically to remove the portion of the condition allowing warrantless searches by a law enforcement officer. We also remand to make costs payable over the period of supervision, in accordance with the trial court’s oral pronouncement. On all other issues, we affirm.
Affirmed in part; reversed and remanded in part with instructions.
Ciklin and Conner, JJ., concur.