Gary D. Nero v. State ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
GARY DAVID NERO,
Appellant,
v. Case No. 5D16-4038
STATE OF FLORIDA,
Appellee.
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Opinion filed May 5, 2017
3.800 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.
James S. Purdy, Public Defender, and
Brittany N. O'Neil, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
In this postconviction proceeding, Appellant challenges the order denying his
Florida Rule of Criminal Procedure 3.800(a) motion on three grounds, only one of which
merits discussion. In his third claim, Appellant argued that the trial court's "ORDER OF
SEX OFFENDER PROBATION" was illegal because he was not convicted of any of the
enumerated felonies listed in section 948.30, Florida Statutes (2012).
The postconviction court agreed with Appellant on the merits, but nevertheless
denied relief, concluding that although labeled as an "ORDER OF SEX OFFENDER
PROBATION," the actual substance of the order indicated that the only conditions
applicable to Appellant were those "generic" conditions contained in the first fourteen
paragraphs that "cover all [probationary] circumstances." As for the remaining eighteen
paragraphs of sex offender conditions contained within the order, the postconviction court
reasoned that, with the exception of two of these sex offender conditions, the order made
clear that the remaining sixteen sex offender conditions were applicable to sex offenses
other than those for which Appellant was convicted.
We conclude that the postconviction court erred in not granting relief. Although we
appreciate the need for efficiency in trial court proceedings, the one-size-fits-all probation
order at use here impermissibly required Appellant to decipher which of the conditions
apply by, among other things, researching particular statutes to determine if they apply to
his circumstances. This does not give fair notice of what is expected of Appellant. See
Lawson v. State, 941 So. 2d 485, 489 (Fla. 5th DCA 2006) (probation order should give
fair notice of conduct that might result in violation). On remand, the trial court shall enter
a new order that clearly delineates the conditions applicable to Appellant.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
PALMER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.
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