RONALD L. THOMPSON v. STATE OF FLORIDA , 239 So. 3d 1269 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RONALD LEON THOMPSON, JR., )
)
Appellant, )
)
v. ) Case No. 2D16-2084
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed March 16, 2018.
Appeal from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.
Howard L. Dimmig, II, Public Defender,
and Christine Trakas Thornhill, Special
Assistant Public Defender, Bartow, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
Ronald Leon Thompson, Jr., appeals his sentences for false imprisonment
with a weapon and aggravated assault while possessing a firearm. Specifically, he
challenges the imposition of certain special conditions of probation relating to drug and
alcohol treatment and evaluation. We affirm. We write only to address Mr. Thompson's
argument that the trial court's failure to orally pronounce certain special conditions
requires that they be stricken.
The written order of probation imposes special conditions requiring that
Mr. Thompson submit to certain drug and alcohol evaluation and treatment, and the
order also requires that Mr. Thompson pay the costs of evaluation and treatment. The
trial court orally pronounced the evaluation and treatment requirements but failed to
orally pronounce the requirement that Mr. Thompson pay the expenses associated
therewith. Mr. Thompson did not object to the evaluation and treatment requirements at
sentencing.
Following sentencing, Mr. Thompson filed a notice of appeal and, prior to
briefing, filed a timely motion to correct sentencing error pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2). In his motion, Mr. Thompson argued that the record
did not support the imposition of special conditions (1) and (6)1 imposing drug and
alcohol evaluation and treatment requirements. He also argued that the requirements
that he pay any expenses associated with evaluation and treatment were not orally
pronounced and thus must be stricken. The trial court filed no order ruling on the
motion and it is thus deemed denied pursuant to rule 3.800(b)(2)(B). Mr. Thompson
argues on appeal that the trial court erred in failing to grant his 3.800(b) motion.
1Mr. Thompson referred to these conditions as conditions (1) and (2) in his
motion to correct sentencing error. Because they are identified as (1) and (6) in the
order of probation, we will use the same reference here for consistency.
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Unlike standard or general conditions of probation, which are contained
within the statutes, State v. Hart, 668 So. 2d 589, 592 (Fla. 1996) (citing Hart v. State,
651 So. 2d 112, 113 (Fla. 2d DCA 1995)), "[s]pecial terms and conditions of probation
must be imposed by oral pronouncement at sentencing," Lavender v. State, 203 So. 3d
969, 971 (Fla. 2d DCA 2016) (citing § 948.039, Fla. Stat. (2014)). See § 948.039, Fla.
Stat. (2015) ("The court shall impose the special terms and conditions by oral
pronouncement at sentencing and include the terms and conditions in the written
sentencing order.").
Failure to orally pronounce a special condition of probation once required
that the condition be stricken. Maddox v. State, 760 So. 2d 89, 105 (Fla. 2000); see
Nank v. State, 646 So. 2d 762, 764 (Fla. 2d DCA 1994) (striking special conditions
requiring drug and alcohol evaluation and treatment at defendant's own expense
because the special conditions were not orally pronounced); Cumbie v. State, 597 So.
2d 946, 947 (Fla. 1st DCA 1992) (affirming condition requiring testing because it was
consistent with a standard condition but striking "at your own expense" language that
was neither a standard condition nor orally pronounced). The concern was that the
unpronounced special conditions of probation violated due process because the
defendant did not have notice and an opportunity to object to the condition of probation.
Maddox, 760 So. 2d at 105.
However, the court noted in Maddox:
[F]ollowing [the supreme court's] promulgation of rule
3.800(b), defendants have been given a procedural
mechanism to object to the imposition of special conditions
of probation that have not been orally pronounced. This
procedural mechanism satisfies due process concerns
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because the defendant has an opportunity to object following
the imposition of the special condition of probation.
Id.In Ladson v. State, 955 So. 2d 612, 613 (Fla. 2d DCA 2007) (en banc),
this court concluded that a defendant may be afforded procedural due process through
rule 3.800(b) even where the trial court has failed to orally pronounce a special
condition. Through rule 3.800(b), "defendants now have the opportunity to raise
substantive objections to probation conditions, and consequently, 'procedural due
process is satisfied without the need to orally pronounce otherwise proper special
probation conditions.' " Lavender, 203 So. 3d at 971 (quoting Ladson, 955 So. 2d at
613); see also Grubb v. State, 922 So. 2d 1002, 1004 (Fla. 5th DCA 2006) (finding
"Grubb's procedural due process rights were adequately protected when she raised her
concerns in her timely 3.800(b) motion").
Here, the trial court orally pronounced the drug and alcohol evaluation and
treatment requirements but did not state that Mr. Thompson would be required to pay
the associated expenses. The payment of such expenses by a defendant is a special
condition of probation and should have been orally pronounced. See Ladson, 955 So.
2d at 613. While the trial court erred in failing to orally pronounce these requirements,
that error was effectively remedied when Mr. Thompson filed his timely motion to correct
sentencing error. Through that motion, Mr. Thompson had "the opportunity to assert . . .
any substantive objection to the portion of the condition that requires oral
pronouncement." See id.Because we find no merit in Mr. Thompson's substantive argument
against imposition of the special conditions, we are left with only the argument that the
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otherwise proper expense requirements were not orally pronounced. This procedural
error was cured by the filing of the rule 3.800(b) motion, and there is no basis for us to
strike those portions of the conditions. Accordingly, we affirm.
Affirmed.
KELLY and BADALAMENTI, JJ., Concur.
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