MARK METELLUS v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARK MARION METELLUS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-1107
[November 18, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Sherwood Bauer, Jr., Judge; L.T. Case No. 43-2017-CF-
000259-AXMX.
Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Appellant, Mark Marion Metellus, appeals his conviction and sentence
for possession of over 20 grams of cannabis, raising three issues. We
affirm the trial court on two of the issues without discussion, but reverse
in part and remand on the third issue. Because the trial court imposed a
special condition of probation for the payment of urinalysis and drug
testing that was not orally announced at sentencing, we affirm the
judgment and sentence of probation with instructions to delete the
probation requirement that Appellant pay for urinalysis and drug testing.
Background
Appellant was charged with possession with intent to sell cannabis over
20 grams and proceeded to a jury trial. The jury returned a verdict of
guilty as charged.
At sentencing, the trial court adjudicated Appellant guilty and
sentenced him to time served in jail, followed by two years of probation.
After announcing that Appellant had to “abide by the standard conditions
of probation,” the trial court specifically stated: “you are subject to random
urinalysis.” The trial court then announced that Appellant was not to
possess any illegal drugs or alcohol and:
You are subject to random search, uh, random drug testing
and that’s because probation wants to make sure that you’re
not possessing or consuming alcohol or drugs and the best
way to do it is [to] take a random urinalysis, right?
The trial court did not announce at sentencing that Appellant was to pay
for urinalysis or drug testing.
In the written probation order signed by the trial court, there are
fourteen “standard conditions of supervision” listed. Standard condition
(11) provides: “You will submit to random testing as directed by your officer
. . . to determine the presence or use of alcohol or controlled substances.”
Under the “Special Conditions” section of the probation order, the box for
paragraph 2 is checked, which provides: “You will submit to urinalysis
testing on a random basis to determine the presence of alcohol or illegal
drugs. You will be required to pay for the tests unless exempt by the
court.”
After sentencing, Appellant gave notice of appeal. During the pendency
of this appeal, Appellant filed a motion pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2) to correct a sentencing error, arguing that
the condition requiring him to pay for his random drug tests should be
stricken as it was never orally pronounced. The motion was denied.
Appellate Analysis
“Because a motion to correct a sentencing error involves a pure issue
of law, our standard of review is de novo.” Brooks v. State, 199 So. 3d 974,
976 (Fla. 4th DCA 2016) (quoting Smith v. State, 143 So. 3d 1023, 1024
(Fla. 4th DCA 2014)).
Appellant argues that the trial court erred in denying his motion to
correct sentencing error, which asserted that the trial court improperly
imposed a special probation condition requiring him to pay for urinalysis
testing. He argues the condition of payment for testing is not a general
condition of probation authorized by either section 948.03, Florida
Statutes (2017) or Florida Rule of Criminal Procedure 3.986(e), and
therefore, in order to be legally imposed, the condition must have been
orally announced at sentencing. He further argues that the failure to
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orally announce the payment condition at sentencing prohibits its
inclusion in the written order of probation. Finally, he argues that double
jeopardy protections preclude adding a provision imposing the payment
for drug testing on him, since the condition was not orally announced at
sentencing and his sentence had begun.
We agree with Appellant’s arguments. In State v. Hart, 668 So. 2d 589,
592-93 (Fla. 1996), our supreme court made clear that general conditions
of probation are those terms of supervision which are authorized by
statutes or court rules. A condition of probation authorized by statute or
court rule “may be imposed and included in a written order of probation
even if not orally pronounced at sentencing.” Id. at 592. Oral
pronouncement at sentencing is not required for such authorized general
conditions because the enactment of the statute or rule provides
constructive notice of the requirement, which permits the defendant to
raise any objection to the condition at sentencing, thus satisfying due
process. Id.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. Id.; State v. Williams,
712 So. 2d 762, 764 (Fla. 1998). “Traditionally, whether a probation
condition is a general condition or a special condition is determined by
reference to Florida Statutes section 948.803 and Florida Rule of Criminal
Procedure 3.986(e); conditions which appear in neither the statute nor the
rule are considered special and must be orally pronounced.” Cole v. State,
932 So. 2d 1123, 1124 (Fla. 4th DCA 2006). “With regard to a special
condition not statutorily authorized, . . . the law requires that it be
pronounced orally at sentencing before it can be included in the written
probation order.” Id. (quoting Nank v. State, 646 So. 2d 762, 763 (Fla. 2d
DCA 1994)).
Appellant committed the subject crime in March 2017. In 2017, Florida
Statute 948.03 listed sixteen general conditions of probation. § 948.03(1),
Fla. Stat. (2017). Regarding drug and alcohol testing, section 948.03(1)(l),
Florida Statutes (2017), provided:
(l) 1. Submit to random testing as directed by the correctional
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.
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§ 948.03(1)(l), Fla. Stat. (2017) (emphases added). Section 948.03
contained no provision for the payment of drug or alcohol testing, except
for section 948.03(1)(o), which stated:
(o) Submit to the drawing of blood or other biological specimens
as prescribed in ss. 943.325 and 948.014, and reimburse the
appropriate agency for the costs of drawing and transmitting
the blood or other biological specimens to the Department of
Law Enforcement.
§ 948.03(1)(o), Fla. Stat. (2017) (emphases added).
The form probation order authorized by Florida Rule of Criminal
Procedure 3.986(e) in 2017 contained a section entitled “Special
Conditions,” with checklist provisions which provided, in part:
____ You will submit to urinalysis, breathalyzer, or blood tests
at any time requested by your officer, or the professional staff
of any treatment center where you are receiving treatment, to
determine possible use of alcohol, drugs, or controlled
substances. You shall be required to pay for the tests unless
payment is waived by your officer.
Fla. R. Crim. P. 3.986(e) (2017) (emphasis added).
Thus, the version of section 948.03(1) in effect in 2017 clearly made
submission to random testing for drugs and alcohol a general condition of
probation. However, there was no statutory authorization to impose
payment for urinalysis on a probationer as a general condition of
probation. Additionally, the rule form order in effect at the time listed
payment for urinalysis by the probationer as a special condition of
probation, requiring a check mark by the judge signing the order. Applying
the applicable statute and rule, the condition of payment for urinalysis by
the probationer was therefore a special condition which had to be orally
announced at sentencing. 1 Because in this case, the payment condition
1 We also note that the trial court did not use the 2017 version of Form 3.986(3).
Instead of the language of the 2017 form stating: “You shall be required to pay
for the tests unless payment is waived by your officer,” the order stated: “You will
be required to pay for the tests unless exempt by the court.” The supreme court
in Williams held that “the discretion afforded to the Department of Corrections in
section 948.09(6), Florida Statutes (1995), is insufficient to serve as statutory
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was a special condition of probation that was not orally announced at
sentencing, it could not be included in the written order of probation.
Therefore, the trial court erred in denying Appellant’s rule 3.800(b) motion
to delete the imposition of payment for urinalysis by Appellant. Because
the correction of Appellant’s probation order is a ministerial act, neither
resentencing nor his presence is required. See Walker v. State, 288 So. 3d
694, 696 (Fla. 4th DCA 2019).
We further agree with Appellant’s argument that the written imposition
of the condition that he pay for drug testing must be deleted because it
does not comport with the oral sentence announced. Williams v. State,
957 So. 2d 600, 603 (Fla. 2007) (“[A] court’s oral pronouncement of a
sentence controls over the written sentencing document.”). Additionally,
we agree that double jeopardy protections prohibit the addition of such a
probation condition, now that the sentence has already begun. Id. (“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.”).
Conclusion
We affirm the judgment and sentence as to all issues raised on appeal,
except for the denial of Appellant’s motion to correct a sentencing error
where the trial court imposed a special condition of probation requiring
Appellant to pay for drug and alcohol testing. We reverse on that issue
and remand for the trial court to enter a corrected probation order that
deletes the requirement.
Affirmed in part, reversed in part, and remanded with instructions.
LEVINE, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
notice that the court can make payment for drug testing a mandatory condition
of probation.” Williams, 712 So. 2d at 764.
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