DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERDD DOUCHARD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-286
[February 22, 2023]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Mark T. Eissey, Judge; L.T. Case No. 50-2020-CT-012820-
AXXX-SB.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia,
Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
After a jury trial, appellant Roberdd Douchard was convicted of driving
under the influence, with an enhancement for having a blood alcohol level
over .15 as charged. He appeals, contending that multiple improper
arguments by the prosecutor warrant a new trial. He also challenges
several conditions of his probation as having not been orally pronounced
by the court, and he contends the court improperly imposed certain costs.
We affirm his conviction without further discussion, concluding that
most of the prosecutor’s comments were either not objected-to, the
objections were sustained with curative instructions, the comments were
not error, or the comments were harmless beyond a reasonable doubt. As
to the conditions of probation, we agree that several require reversal as
they were not orally pronounced, but we disagree with appellant’s
contention that the failure to orally pronounce a time to complete certain
conditions requires reversal.
The trial court imposed a sentence of one-year probation with special
conditions, and permitted early termination if appellant completed the
conditions. Appellant objected to several of the conditions and filed a
motion to correct sentencing errors pursuant to Florida Rule of Criminal
Procedure 3.800(b). The trial court denied the motion.
An appellate court reviews the denial of a motion to correct sentencing
error de novo as it involves a pure issue of law. Metellus v. State,
310 So.
3d 90, 92 (Fla. 4th DCA 2021) (citing Brooks v. State,
199 So. 3d 974, 976
(Fla. 4th DCA 2016)).
“Conditions of supervision which are not authorized by statute or court
rule are considered ‘special conditions’ which must be orally announced
at sentencing in order to comport with due process.” Metellus, 310 So. 3d
at 92. “When the written document results in a sentence that is more
severe than the sentence announced in court, this Court has considered
it a potential violation of the constitutional protection against double
jeopardy.” Williams v. State,
957 So. 2d 600, 603 (Fla. 2007). With these
principles in mind, we evaluate the contested conditions of probation.
Condition five of appellant’s probation provides:
You will not use intoxicants and you will not possess or
consume any drug or narcotics unless prescribed and
consumed as directed by a physician. You will not possess
or consume any illegal drugs and will not visit places
where intoxicants, drugs or other dangerous substances
are unlawfully sold, dispensed or used. To determine the
presence of alcohol or controlled substance you are required
to submit to testing at your own expense as directed by
probation. Must provide proof of prescription to
probation by 2/5/22.
🗹🗹 (If Checked) You will not possess nor consume any type of
alcohol; you will not consume any food or take any
medication that contains alcohol.
🗹🗹 (If Checked) You will submit to random testing as directed
by probation at your own expense.
(Emphasis supplied).
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Appellant challenges the first bolded statement as requiring the word
“knowingly” to precede “visit,” so that the condition should read: “You will
not possess or consume any illegal drugs and will not knowingly visit
places where intoxicants, drugs or other dangerous substances are
unlawfully sold, dispensed or used.” He relies on Sandoval v. State,
337
So. 3d 5 (Fla 4th DCA 2022), which remanded a probation order to include
that term. Id. at 7; see also Nelson v. State,
669 So. 2d 1145, 1147 (Fla.
4th DCA 1996). Nelson pointed out that the general condition of probation
in section 948.03(1)(m), Florida Statutes (1995), included the word
“knowingly.” See § 948.03(1)(n), Fla. Stat. (2022) (stating “[t]he
probationer or community controllee may not knowingly visit places where
intoxicants, drugs, or other dangerous substances are unlawfully sold,
dispensed, or used”) (emphasis supplied).
Based on Sandoval and Nelson, we agree that the court should amend
the statement in condition 5 to include that the probationer must not
“knowingly” visit the places enumerated in the statute.
Condition five also required appellant to submit to drug testing at his
own expense. While submission to drug testing is a general condition of
probation, see section 948.03(1)(l)1., Florida Statutes (2022), payment by
the probationer is not part of that general condition. The court did not
orally pronounce the requirement that appellant pay for testing, and in
Metellus, we held that payment at the probationer’s expense was a special
condition which must be orally pronounced. See Metellus, 310 So. 3d at
93. We considered the requirement to pay for testing to be an increase in
punishment. Id. at 94. Thus, the condition that appellant pay for drug
testing must be stricken from the conditions of probation, which the State
concedes.
Condition five next prohibited appellant from consuming narcotics
“unless prescribed and consumed as directed by a physician.” This is a
general condition of probation. See § 948.03(1)(n), Fla. Stat. (stating
probationer is prohibited “from using intoxicants to excess or possessing
any drugs or narcotics unless prescribed by a physician”). The written
order then stated that appellant must provide his probation officer proof
of a prescription by February 5, 2022. Appellant contends that this time
deadline was not orally pronounced and must be stricken as a violation of
double jeopardy. We disagree.
In Lawson v. State,
969 So. 2d 222 (Fla. 2007), the supreme court
considered whether a probationer could be violated for failure to complete
a drug treatment program where the probation order failed to specify the
number of chances that the defendant would have to complete the program
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or to set a time period for compliance.
Id. at 225. The supreme court held
that the absence of specific time parameters in the probation order did not
prevent the trial court from finding a violation of probation for failure to
successfully complete the program.
Id. at 237. The court explained:
Although the conditions [of probation] should be clearly set
out and must mean what they say, every detail need not be
spelled out and the language should be interpreted in its
common, ordinary usage. Thus, a probation order that
requires the completion of a drug treatment program but fails
to specify time parameters should be read in a commonsense
manner. Accordingly, a probationer who has been given the
privilege of being placed on probation, in lieu of serving jail
time, is put on adequate notice that the treatment program
should be undertaken at the beginning of the probationary
period and that, if he or she is discharged for nonattendance,
he or she may not have another chance to complete the
program.
Id. at 235 (internal citation omitted) (first emphasis supplied).
We agree with the State that the addition of a date for appellant to
provide any prescriptions to assure his compliance with the condition is
merely a detail. If this detail need not be spelled out to subject a
probationer to violation, then it should not be a detail which, if included
in the order, should be stricken when not orally pronounced. In other
words, its inclusion does not amount to the addition or enhancement of
the special condition itself.
More importantly, the inclusion of the time deadline for providing proof
of a prescription to the probation officer did not violate double jeopardy.
“[T]he double jeopardy protection against multiple punishments includes
the protection against enhancements or extensions of the conditions of
probation.” Lippman v. State,
633 So. 2d 1061, 1064 (Fla. 1994). The
establishment of a date to report to the probation officer is neither an
enhancement nor an extension of probation. The date did not create a
new condition of probation but merely provided a detail of how appellant
should comply with an announced condition.
Similarly, we also conclude that condition ten, which required appellant
to complete fifty hours of community service by completing at least ten
hours a month, was not a violation of double jeopardy. At sentencing, the
trial court stated that appellant was required to “complete fifty hours of
community service.” In the written probation order, condition ten states:
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“You will perform 50 hours of community service, enroll within 30 days
and complete a minimum of 10 hours per month[.]”
Garrison v. State,
685 So. 2d 53 (Fla. 2d DCA 1996), is instructive. In
Garrison, the judge ordered “that the appellant complete 100 hours of
community service.”
Id. at 55. The probation order specified that the
appellant complete ten hours per month. The court found this
requirement proper, stating “[w]e agree with the state that the monthly
requirement does not alter that portion of the sentence imposed.”
Id. We
also agree that the detail of how a probationer should accomplish an
announced condition is not an alteration of a sentence and thus does not
violate double jeopardy.
Based upon the foregoing analysis of double jeopardy, we also find no
error in the time period requirement for signing up for DUI school, or
attending a Victim Impact Panel, although neither timing element was
orally pronounced.
The State does concede that the requirement that appellant pay for the
Victim Impact Panel was not orally pronounced and thus must be stricken.
See Metellus, 310 So. 3d at 93.
The written order in condition eight required appellant to pay fifty
dollars per month as the costs of probation. As the State concedes,
subsection 948.09(1)(b), Florida Statutes (2022), permits the imposition of
only a forty-dollar fee, unless the trial court orally pronounces an
increased fee. See Sandoval, 337 So. 3d at 7. Because the increased fee
was not orally pronounced, the cost must be reduced to forty dollars on
remand.
Appellant contends that although the written order requires as a
condition of probation the payment of a $1050 fine and $476 in costs, the
trial court did not orally pronounce these costs as a condition. To the
contrary, at sentencing the court stated, “[t]he law require [sic], though,
that I impose these conditions. First, the Court is required to assess a fine
of $1,000 dollars plus the associated court costs. I am not assessing a cost
of prosecution, just the court costs and the fine, which are required.” The
record shows that the mandatory costs amounted to $476, and an
additional $50 was assessed on the $1000 fine pursuant to the mandatory
provision of section 938.04, Florida Statutes (2022).
Section 948.03(1)(j), Florida Statutes (2022), provides as a mandatory
condition of probation: “[p]ay any application fee assessed under s.
27.52(1)(b) and attorney’s fees and costs assessed under s. 938.29, subject
5
to modification based on change of circumstances.” Appellant contends
that this condition allows only the assessment of the minimum $100
attorney’s fee under those statutes. We interpret the statute as requiring
the payment of this cost as a condition of probation even if not announced,
but in this case the court did announce that all court costs would be
assessed “as required.” We interpret this announcement to mean that the
court was making the payment of all mandatory court costs a condition of
probation.
Finkelstein v. State,
944 So. 2d 1226 (Fla. 4th DCA 2006), is instructive
and allows for the imposition of the statutorily mandated costs to be a
condition of probation. In Finkelstein, the appellant argued that
imposition of court costs among other costs as “part of his sentence and a
condition of probation” was error where the trial court did not determine
first his ability to pay.
Id. at 1227. We held:
Statutorily mandated costs may be imposed without notice to
the defendant. However, the trial court is required to give the
defendant notice of the imposition of discretionary costs and
to make an oral pronouncement of such costs and their
statutory basis. If this does not occur, and discretionary costs
are made a condition of probation, they are to be stricken, and
cannot be re-imposed.
Id. (internal citations omitted).
In this case, the trial court specifically announced that the payment of
the fine and “required” court costs were special conditions of probation.
The costs imposed were all mandatory, and the court was not required to
orally pronounce each one of them. See
id.
Appellant also contends that the $2 criminal justice education fee
assessed as part of the $135 lump-sum fee of “County & Circuit Criminal
Standard Court Costs” is not authorized. However, the imposition of the
cost as a mandatory fee was lawful pursuant to section 938.15, Florida
Statutes (2022), and Palm Beach County Resolution 2004-1502. Section
938.15 provides: “In addition to the costs provided for in s. 938.01,
municipalities and counties may assess an additional $2 for expenditures
for criminal justice education degree programs and training courses[.]” In
Waller v. State,
911 So. 2d 226, 228 (Fla. 2d DCA 2005), the court held
that this $2 criminal justice fee is “mandatory.” We have likewise held the
“$2 education fee” to be mandatory pursuant to Chapter 938. Franklin v.
State,
321 So. 3d 256, 257 (Fla. 4th DCA 2021). Accordingly, the $2
assessment was not entered in error.
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Finally, as the State concedes, there is a scrivener’s error in the
probation order which states that appellant entered a guilty plea to the
DUI charge. Appellant was tried by a jury in this case. Accordingly, we
remand the case to the trial court to correct the scrivener’s error.
Conclusion
While we affirm the conviction, we reverse the sentence, as several of
the conditions of probation need correction or need to be stricken in
accordance with this opinion. See Justice v. State,
674 So. 2d 123, 126
(Fla. 1996). We affirm the conditions of probation which placed time
requirements on their completion, as they did not violate double jeopardy.
Affirmed in part and reversed in part.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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