Lavender v. State , 2016 Fla. App. LEXIS 16437 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BYRON DAMON LAVENDER, )
)
Appellant, )
)
v. ) Case No. 2D15-417
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed November 4, 2016.
Appeal from the Circuit Court for
Hillsborough County; Caroline J. Tesche
and Thomas Barber, Judges.
Howard L. Dimmig, II, Public Defender,
and Brooke Elvington, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.
MORRIS, Judge.
Byron Damon Lavender appeals his judgment and sentence for burglary
of a dwelling with assault. We affirm his judgment without further comment. We also
affirm his sentence,1 but we write to address his challenge to the imposition of two
special conditions of probation for which the State conceded error.
Special condition 17 required Lavender to maintain an hourly accounting
of all of his activities in a daily log. Special condition 19 required Lavender to submit to
electronic monitoring and to pay $5.50 per day for the cost of the monitoring. Lavender
challenged the imposition of these special conditions by filing a motion pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2), arguing that they should be stricken
because the trial court failed to orally pronounce them at sentencing. Although the trial
court attempted to correct these sentencing errors by granting Lavender's motion to
correct sentencing error, the trial court did not do so within the sixty-day window
afforded by rule 3.800(b)(2)(B). Consequently, the order granting Lavender's motion is
a nullity. See Williams v. State, 67 So. 3d 249, 250-51 (Fla. 2d DCA 2010).
Special terms and conditions of probation must be imposed by oral
pronouncement at sentencing. § 948.039, Fla. Stat. (2014). Here, the requirement of
maintaining a daily activity log is not statutorily authorized under sections 948.101 and
948.03, and thus it was required to be orally pronounced at sentencing. And while the
requirement of submitting to electronic monitoring is a standard condition of probation
that need not be orally pronounced, see § 948.101(1)(d), there is no statutory authority
for requiring a probationer to pay for such monitoring. Thus, that portion of condition 19
was also required to be orally pronounced at sentencing.
In prior cases, we have stricken special conditions of probation that were
not orally pronounced. See Ladson v. State, 955 So. 2d 612, 613 (Fla. 2d DCA 2007)
1
Lavender was sentenced to seven years in prison followed by two years
of community control and three years of probation.
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(en banc) (citing cases). However, in Ladson, we explained that with the adoption of
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." Id. (quoting
Grubb v. State, 922 So. 2d 1002, 1003 (Fla. 5th DCA 2006)). We concluded that
Ladson was not entitled to relief on his challenge to the imposition of a portion of a
probation condition that was not orally pronounced because his "objection was
procedural only and he raised no substantive basis to strike the condition." Id. We also
receded from cases "in which we struck unpronounced conditions even though the
appellant was able to challenge those conditions by the rule 3.800(b) procedure."2 Id.
Here, as in Ladson, Lavender filed a rule 3.800(b) motion wherein he only
made a procedural objection to special condition 17 and the portion of condition 19 that
required payment for electronic monitoring. He did not make any substantive objections
to the conditions. Thus because he was afforded procedural due process through the
rule 3.800(b) procedure, there is no other basis requiring us to strike the conditions.3
Accordingly, we affirm.
Affirmed.
BLACK and SLEET, JJ., Concur.
2
We specifically receded from these cases by name: Martinez v. State,
841 So. 2d 632 (Fla. 2d DCA 2003), Crowley v. State, 813 So. 2d 1065 (Fla. 2d DCA
2002), and Miller v. State, 809 So. 2d 101 (Fla. 2d DCA 2002).
3
In asserting that remand was required for the trial court to strike the
special conditions, Lavender and the State cited cases that predated the adoption of
rule 3.800(b). Cf. Luby v. State, 648 So. 2d 308 (Fla. 2d DCA 1995); Vinyard v. State,
586 So. 2d 1301 (Fla. 2d DCA 1991). But as we determined in Ladson, because
defendants can now utilize the rule 3.800(b) procedure to challenge improperly imposed
special conditions of probation, remand is no longer required in cases involving facts
similar to this case.
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