SHERRI LAVICTOIRE MARQUIS v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SHERRI LAVICTOIRE MARQUIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2172
[May 25, 2022]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; August A. Bonavita, Judge; L.T. Case No. 50-2020-MM-
004019-AXXX-SB.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, C.J.
Sherri Lavictoire Marquis (“Appellant”) appeals her conviction and
sentence for misdemeanor battery, raising two issues contending the State
made improper closing arguments and three issues concerning improper
probation conditions imposed in the written probation order which had
not been orally pronounced at sentencing. We affirm without discussion
the issues concerning the State’s closing arguments. We address the three
issues regarding the probation conditions. The first probation condition
we address is erroneous and we reverse. We affirm the second contested
probation condition and explain our reasons for affirming. The third
probation condition addressed is not reversible error, but we suggest a
revision to that condition.
Background
For the misdemeanor battery, the trial court sentenced Appellant to
twelve months of probation with a provision for early termination after six
months. After sentencing, the written probation order included conditions
which were not announced during sentencing. Specifically, Condition 1
stated: “You will not change your residence or employment or leave the
county of your residence without first procuring the consent of your
Probation Supervisor.” Condition 5, in part, stated that Appellant “will
[not] visit places where intoxicants, drugs or other dangerous substances
are unlawfully sold, dispensed or used unlawfully.” Condition 8 required
that Appellant pay $50 per month toward the cost of her supervision, and
Condition 15 required Appellant to enroll in and complete a
DUI/Substance Abuse Program.
Appellant filed a timely Florida Rule of Criminal Procedure 3.800(b)(2)
motion and argued that these conditions in the written probation order
were improperly imposed special conditions which had not been orally
pronounced at sentencing. In response, the trial court struck the
condition requiring that Appellant attend a DUI or substance abuse
program, but denied the motion as to the other three conditions.
Subsequently, Appellant gave notice of appeal.
Appellate Analysis
Appellant argues that the trial court erred by imposing three special
probation conditions in the written probation order which were not orally
pronounced at sentencing. Specifically, Appellant asserts that the
following conditions are special conditions because they are not authorized
by section 948.03, Florida Statutes (2020), or Florida Rule of Criminal
Procedure 3.986(e): (1) paying $50 per month towards the cost of her
probation; (2) obtaining approval from her probation officer before
changing her residence, employment, or leaving the county; and (3) not
visiting places where intoxicants, drugs or other dangerous substances are
unlawfully sold, dispensed, or used unlawfully.
In response, the State argues that the trial court did not err in imposing
those conditions because all are general probation conditions which do not
require an oral pronouncement.
“The standard of review for a motion to correct a sentencing error is de
novo.” Fain v. State, 308 So. 3d 190, 192 (Fla. 4th DCA 2020) (quoting
Terry v. State, 263 So. 3d 799, 802 (Fla. 4th DCA 2019)).
“[G]eneral 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.’”
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Metellus v. State, 310 So. 3d 90, 92 (Fla. 4th DCA 2021) (quoting State v.
Hart, 668 So. 2d 589, 592-93 (Fla. 1996)).
On the other hand, “[c]onditions 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. “[W]hether a probation condition is a general condition
or a special condition is determined by reference to Florida Statutes . . .
and Florida Rule of Criminal Procedure 3.986(e); conditions which appear
in neither [a] statute nor the rule are considered special and must be orally
pronounced.” Cole v. State, 932 So. 2d 1123, 1124 (Fla. 4th DCA 2006).
Therefore, we must determine whether each probation condition which
Appellant challenges qualifies as a general condition or special condition.
Paying $50 Per Month for Cost of Supervision
Section 948.09(1)(b), Florida Statutes (2020), provides: “Any person
placed on misdemeanor probation by a county court must contribute not
less than $40 per month” towards the cost of their supervision. A trial
court may impose statutorily mandated costs without notice, “[h]owever,
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.” Sandoval v. State, 47 Fla. L. Weekly D441, D442
(Fla. 4th DCA Feb. 16, 2022).
In the present case, Appellant correctly argues the trial court erred by
requiring her to pay $50 per month towards her probation because this
amount is greater than what is authorized by statute and thus
discretionary. We have recently held that a trial court is required to orally
pronounce the imposition of a $50, $55, and $65 monthly charge for the
cost of supervision. See id. (reversing a special condition to pay $65 for
the first month of probation and $55 for the remaining months, where no
oral pronouncement was made); Paris v. State, 47 Fla. L. Weekly D445,
D446 (Fla. 4th DCA Feb. 16, 2022) (reversing a special condition to pay
$50 month towards the cost of supervision).
Here, like in Paris, the trial court’s written probation order imposed a
$50 monthly charge towards the cost of Appellant’s probation. Because
this charge is greater than the statutorily mandated $40 per month, it is
a special condition which should have been orally pronounced during
sentencing. Based on Sandoval and Paris, we reverse the probation
condition ordering Appellant to pay $50 per month for supervision cost
and remand for entry of a corrected probation order reducing the
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supervision cost to $40 per month. See Sandoval, 47 Fla. L. Weekly at
D442; Paris, 47 Fla. L. Weekly at D446.
Not Changing Residence or Employment, or Leaving County of Residence,
Without Probation Supervisor’s Consent
Appellant next argues the trial court did not orally pronounce that she
would need to obtain her probation officer’s consent before leaving the
county of her residence, changing her residence, or changing her
employment. Appellant contends these restrictions constitute special
probation conditions which the trial court was required to announce at
sentencing. The State counter-argues the restrictions are consistent with
the general probation conditions, and that cooperating with the probation
officer is a necessary component of probation.
Section 948.03 provides:
(1) The court shall determine the terms and conditions of
probation. Conditions specified in this section do not require
oral pronouncement at the time of sentencing and may be
considered standard conditions of probation. These
conditions may include among them the following, that the
probationer or offender in community control shall:
(a) Report to the probation officer as directed.
(b) Permit the probation officer to visit him or her at his or her
home or elsewhere.
(c) Work faithfully at suitable employment insofar as may be
possible.
(d) Remain within a specified place.
§ 948.03(1)(a)-(d), Fla. Stat. (2020) (emphasis added).
Pursuant to section 948.03(1), reporting to the probation officer as
directed, permitting the probation officer to visit the probationer at his or
her home or elsewhere, and remaining within a specified place are
standard probation conditions. Id. Significantly, section 948.06, Florida
Statutes (2020), which governs probation violations, provides that
“[f]ailure to report a change in address or other required information,”
“[l]eaving the county without permission,” and “[f]ailure to report a change
in employment” are “low-risk violation[s].” § 948.06(9)(b)3., 8., 9., Fla.
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Stat. (2020). Reading section 948.03 in para materia with section 948.06,
we hold that the condition requiring Appellant to obtain her probation
officer’s consent before leaving a specified place – her county of residence
and the jurisdiction of the court – and before changing her address or place
of employment, is consistent with standard conditions of probation. Under
section 948.03(1)(a), Appellant is required to report to her probation officer
as directed, and it is not uncommon for probation officers to meet
probationers at the probationer’s residence or place of employment.
Cooperating fully and maintaining contact with the probation officer are
necessary components of being under probation and community control
supervision. See W.J. v. State, 688 So. 2d 954, 956-57 (Fla. 4th DCA 1997)
(holding that condition requiring juvenile to not change place of residence
without prior knowledge and consent of the community control counselor
was valid despite not being orally pronounced). Thus, we affirm the
probation order as to Condition 1.
Not Visiting Places Where Intoxicants, Drugs or Other Dangerous
Substances Are Unlawfully Sold, Dispensed, or Used
Finally, Appellant argues that the trial court erred by entering a
probation order which required she not “visit places where intoxicants,
drugs or other dangerous substances are unlawfully sold, dispensed or
used,” because it omits the word “knowingly”.
Section 948.03(1)(n), Florida Statutes (2020), states that “[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 added). Although we previously have held
the omission of 948.03(1)(n)’s knowledge element in a probation order is
not necessarily error, we have remanded suggesting that the trial court
amend the condition “to reflect that appellant may not ‘knowingly visit’
such prohibited places.” See Nelson v. State, 669 So. 2d 1145, 1147 (Fla.
4th DCA 1996) (omitting the word “knowingly” was not error but
remanding to amend the condition); Sandoval, 47 Fla. L. Weekly at D442
(suggesting upon remand the trial court amend the condition to reflect the
defendant may not “knowingly visit” prohibited places).
Because we are remanding for the probation order to be amended as to
another condition, we similarly suggest that the trial court include the
knowledge element in the condition that Appellant not visit the places
currently described in Condition 5 of the order under review.
Conclusion
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Accordingly, we affirm Appellant’s judgment and probation sentence
imposed for misdemeanor battery, but reverse the order placing Appellant
on probation insofar as it imposes an unauthorized $50 monthly
supervision cost, and direct the trial court to reduce the monthly
supervision cost to $40. We also suggest that on remand the trial court
modify Condition 5 of the probation order to make clear that Appellant
shall not “knowingly visit” the prohibited places described therein.
Affirmed in part, reversed in part, and remanded with instructions.
GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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