MARK METELLUS v. STATE OF FLORIDA

M
       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      MARK MARION METELLUS,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D19-1107

                           [January 13, 2021]

  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.

                     ON MOTION FOR REHEARING

CONNER, J.

   We deny the State’s motion for rehearing, but sua sponte withdraw our
opinion dated November 18, 2020, and issue the following in its place:

    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 written probation
order imposed a special condition of probation for the payment of
urinalysis and drug testing that was not orally announced at sentencing,
a double jeopardy violation occurred. Thus, 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

                                      2
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
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. The State did not address
Appellant’s double jeopardy arguments in its answer brief.

   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). “[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)[, and]
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). Where a special condition is not authorized by
rule or statute, “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:



                                     3
       (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.

§ 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

                                         4
was a special condition of probation that was not orally announced at
sentencing, as a matter of double jeopardy, it could not be included in the
written order of probation. 2 See Williams v. State, 

957 So. 2d 600

, 603
(Fla. 2007) (“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.”). We agree with Appellant’s argument that the requirement to
pay for urinalysis or drug testing in the written sentence imposed a more
onerous punishment on him than the conditions of probation orally
announced at sentencing. See Tran v. State, 

965 So. 2d 226

, 229 (Fla. 4th
DCA 2007) (subsequent written order specifying the duration of sex
offender treatment as a condition of probation not orally announced at
sentencing constituted a double jeopardy violation). Therefore, the trial
court erred in denying Appellant’s rule 3.800(b) motion to delete the
imposition of payment for urinalysis by Appellant.

    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, 957 So. 2d at 603

(“[A] court’s oral pronouncement of a sentence controls over the
written sentencing document.”).

                                   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

be required to pay for the tests unless exempt by the court.” The supreme court
in State v. 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 notice that the court can make payment for drug testing a mandatory
condition of probation.” State v. 

Williams, 712 So. 2d at 764

.

2 The State correctly points out that in Levandoski v. State, 

245 So. 3d 643

, 647-
48 (Fla. 2018), our supreme court explained that due process is not violated by a
failure to orally announce a special condition of probation at sentencing, because
Florida Rule Criminal Procedure 3.800(b) provides a vehicle to present
substantive objections to the additional condition imposed in the written
sentence. Importantly, however, the supreme court also explained that a
defendant may raise a double jeopardy claim that the written sentencing order
was more severe than the oral sentence at any time.

Id. at 647

n. 6.


                                        5
deletes the requirement. 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).

   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.




                                    6

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