FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
District - Case No. 4D15-4801 (St. Lucie County)
LeRoy of LeRoy Law, PA, West Palm Beach, Florida, for
Jo Bondi, Attorney General, Tallahassee, Florida, Celia A.
Terenzio, Bureau Chief, and Allen R. Geesey, Assistant
Attorney General, West Palm Beach, Florida, for Respondent
case is before the Court for review of the decision of the
Fourth District Court of Appeal in Levandoski v.
State, 217 So.3d 215 (Fla. 4th DCA 2017), which
certified conflict with the decision of the First District
Court of Appeal in Snow v. State (Snow I),
157 So.3d 559 (Fla. 1st DCA 2015), quashed on other
grounds, No. SC15-536 (Fla. Apr. 28, 2016),
clarified on remand, 193 So.3d 1091 (Fla. 1st DCA
2016), on the issue of whether a trial court is required to
orally pronounce each condition of "sex offender
probation" contained in section 948.30, Florida Statutes
(2010), when the defendant is not convicted of one of the
section's enumerated offenses. We have jurisdiction.
See art. V, § 3(b)(4), Fla. Const. For the
reasons explained below, we approve the decision of the
Fourth District and disapprove of Snow to the extent
it holds each special condition of sex offender probation
must be orally pronounced.
AND PROCEDURAL HISTORY
2009, Petitioner Michael Levandoski was arrested and charged
with two offenses: (Count I) lewd computer solicitation of a
child under section 847.0135(3), Florida
Statutes (2010), and (Count II) traveling to meet a minor for
unlawful sexual activity under section 847.0135(4), Florida
Statutes (2010). In August 2010, Levandoski pleaded no
contest to both charges. Levandoski moved for a downward
departure sentence and requested that he be sentenced to
"sex offender probation with house arrest, " rather
than a prison term. The trial court denied the motion and
sentenced him to forty-eight months' incarceration
followed by one year of "sex offender probation"
for Count I. Levandoski, 217 So.3d at 217. For Count
II, the court imposed fifteen years of "sex offender
probation" to run consecutively to Count I. Id.
The court stated during the sentencing hearing:
I will make it a special condition of his probation that he
is prohibited from-this is part of the sex offender probation
anyway, but just to make the record clear, should there be
any change in the law as of the time of his release, he's
prohibited from accessing the internet, possessing a computer
or any electronic device that can access the internet, and
he's prohibited from having an email address or other
similar type of address that allows him to participate in
conversations with anyone over the internet by whatever name
that may be known here or in the future until his probation
written Order of Sex Offender Probation included the standard
conditions of Levandoski's probation, the special
conditions orally pronounced during sentencing, and all of
the conditions contained in section 948.30, Florida Statutes
(2010). Levandoski's convictions and sentences were
affirmed on direct appeal. Levandoski v. State, 96
So.3d 907 (Fla. 4th DCA 2012).
2015, after serving his prison term, Levandoski moved to
strike the section 948.30 conditions of probation on the
ground that they constituted an illegal sentence because the
conditions were neither mandatory under the statute, nor
orally pronounced at sentencing. Alternatively, he moved to
modify certain conditions of his probation if the court was
unwilling to strike them in their entirety.
a hearing on the motion to strike, the trial court
acknowledged that it did not review with Levandoski the
conditions found in section 948.30 during the plea colloquy.
It also determined that the Florida Department of Corrections
was supervising Levandoski "as if he had been put on sex
offender probation for [section] 847.0135(5)." In other
words, Levandoski was being supervised for every condition of
sex offender probation contained in section 948.30 that is
applicable to violators of section 847.0135(5), even though
he was convicted of violations of section 847.0135(3) and
(4). The court ultimately denied Levandoski's motion to
the extent he requested the section 948.30 conditions be
appeal to the Fourth District, Levandoski argued that the
trial court erred in denying the motion to correct sentence.
Levandoski, 217 So.3d at 217. He asserted that
"his written sentence was illegal because it included
'sex offender probation' even though the individual
components of sex offender probation were not orally
pronounced at sentencing." Id. at 217. The
district court disagreed and determined that, "[w]hen a
court clearly imposes sex offender probation as a special
condition of probation, it need not individually specify each
item contained within the umbrella of sex offender probation
conditions." Id. at 219. The district court
concluded "the court's oral pronouncement that
Levandoski would be subject to 'sex offender
probation' was sufficient to impose each of the
components" contained in section 948.30. Id. at
Fourth District certified conflict with the decision of the
First District in Snow I, which held that only those
conditions of sex offender probation that are specifically
stated can be imposed, and "conditions not orally
pronounced at sentencing must be stricken" and may not
be imposed at resentencing pursuant to double jeopardy
principles. 157 So.3d at 562. This review follows.
issue presented is a pure question of law subject to de novo
review. See Norvil v. State, 191 So.3d 406, 408
948.30 delineates the standard conditions of probation for
those who commit certain enumerated sex offenses: those
convicted of a violation of chapter 794, or sections 800.04,
827.071, 847.0135(5), or 847.0145, Florida Statutes (2010).
Pursuant to the specific language of section 948.30, if a
defendant is convicted of one of these offenses, the trial
court is not required to orally pronounce each standard
condition at sentencing. § 948.30, Fla. Stat. (2010).
While the conditions within section 948.30 are only mandatory
for violations of the enumerated offenses, they can
nevertheless be imposed, in whole or in part, on violators of
other offenses as special conditions of probation if they
reasonably relate to rehabilitation. Villanueva v.
State, 200 So.3d 47, 53 (Fla. 2016).
trial courts have orally pronounced special conditions of
probation during sentencing. See Lawson v. State,
969 So.2d 222, 227 n.3 (Fla. 2007). In 1999, Florida Rule of
Criminal Procedure 3.800(b) was amended to allow a defendant
to file a motion to correct sentencing error in the trial
court at any time until the first appellate brief is filed.
Amends. to Fla. Rules of Crim. Pro. 3.111(e)
& 3.800 & Fla. Rules of App. Pro. 9.020(h), 9.140,
& 9.600, 761 So.2d 1015 (Fla. 1999),
modified, 761 So.2d 1025 (Fla. 2000). It was
anticipated that the extended time to file a rule 3.800(b)
motion would "eliminate the problem of unpreserved
sentencing errors raised on direct appeal." Maddox
v. State, 760 So.2d 89, 94 (Fla. 2000). In
Maddox, this Court explained how the amendments to
rule 3.800(b) satisfied due process concerns related to
unpronounced special conditions of probation:
Prior to the [Criminal Appeal Reform Act of 1996], we
differentiated between "general conditions of
probation" and "special conditions of
probation." See [State v.]
Williams, 712 So.2d  at 764 [(Fla. 1998)];
Justice [v. State], 674 So.2d  at 125
[(Fla. 1996)]. We found that defendants are given
constructive notice of the imposition of general conditions
of probation that are mandated or authorized by statute.
See State v. Hart, 668 So.2d 589, 592 (Fla. 1996);
see also Brock v. State, 688 So.2d 909, 910 n. 1
(Fla. 1997). Likewise, defendants are given constructive
notice of the general conditions of probation published in
conditions (1)-(11) of the standard probation form found in
Florida Rule of Criminal Procedure Rule 3.986(e). See
Hart, 668 So.2d at 592. Thus, general conditions of
probation do not have to be orally pronounced at the
sentencing hearing and due process is satisfied as long as
the conditions are included in the written sentencing order.
See id. at 592-93.
However, we distinguished special conditions of probation,
which are not statutorily authorized or mandated or found
among the first eleven general conditions of probation listed
in the rules of criminal procedure. See Williams,
712 So.2d at 764; Hart, 668 So.2d at 593. We found
that if the defendant had not been given notice of the
imposition of these sanctions during the oral pronouncement
of sentence, the special condition of probation must be
struck and could not be reimposed on remand. See
Justice, 674 So.2d at 125.
Because we allowed courts to impose general conditions of
probation that have not been orally pronounced, it is clear
that our primary concern in correcting unannounced special
conditions of probation is the due process violation
occurring when a person does not have notice and an
opportunity to object to the condition of probation.
However, following our promulgation of rule 3.800(b),
defendants have been given a procedural mechanism to object
to the imposition of special conditions of probation that
have not been orally pronounced. This procedural mechanism
satisfies due process concerns because the defendant has an
opportunity to object following the imposition of the special
condition of probation.
Id. at 105 (emphasis added).
other words, if the written sentencing order contains special
conditions of probation that a defendant alleges were not
orally pronounced at sentencing, substantive objections to
those conditions may be raised in a rule 3.800(b) motion upon
receiving the written order after the conclusion of the
sentencing hearing (but before the first appellate brief is
filed). Fla. R. Crim. P. 3.800(b). Therefore, the defendant
cannot raise a due process claim asserting he was not
afforded an opportunity to object to the unpronounced
conditions because the rule 3.800(b) motion afforded him that
opportunity. However, if the written order is
not provided ...