FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Donna Padar
M. Reid of The Law Offices of Carlson & Meissner,
Bradenton, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for Appellee.
John Jones appeals an "order clarifying defendant's
sentence" that imposed special conditions of sex
offender probation. Jones contends that adding sex offender
probation conditions subsequent to his sentencing violated
double jeopardy principles. Failing that, he maintains that
the specific conditions restricting his contact with or
proximity to children were improper. We reverse.
Jones entered a negotiated plea to traveling to
seduce/solicit/entice a child to commit a sex act (count
two), in violation of section 847.0135(4)(a), Florida
Statutes (2012), and to transmission of material harmful to
minors (count three), in violation of section 847.0138(2),
Florida Statutes (2012). He was sentenced to 25.05
months' prison followed by six years' probation on
both counts, with a designation of sex offender probation on
plea hearing and again at the sentencing hearing, it was
agreed by all present that there had been no actual victim
under age eighteen and sex offender probation conditions
required in cases involving minor victims would not apply.
Accordingly, the court entered a form order of sex offender
probation that set forth the statutory special conditions
attendant to sex offender probation. Consistent with the plea
agreement, the court checked a box to implement the following
qualification: "No victim under 18, therefore, no
prohibition as to contact with minors as a condition of Sex
at the sentencing hearing the judge did not orally enumerate
the special conditions associated with the sex offender
probation. This was significant because traveling to
seduce/solicit/entice a child to commit a sex act is not an
enumerated offense for which sex offender probation is
mandatory under section 948.30(1), Florida Statutes (2012).
Special conditions of sex offender probation may be imposed
for a nonenumerated offense if they are reasonably related to
the offense or to future criminality. Villanueva v.
State, 200 So.3d 47, 53 (Fla. 2016). But after Jones was
sentenced the First District held that for an offense that is
not enumerated under section 948.30(1), the component
conditions of sex offender probation must be orally announced
at sentencing and that those not orally announced must be
stricken. Snow v. State, 157 So.3d 559, 561-62 (Fla.
1st DCA 2015), quashed on other grounds, No.
SC15-536 (Fla. 2016), clarified on remand, 193 So.3d
1091 (Fla. 1st DCA 2016).
Jones completed the incarcerative portion of his sentence,
the State filed a motion asking the trial court to clarify
the sentence by orally announcing specific special conditions
of sex offender probation as required by Snow. Over
defense counsel's objection, the court granted the
State's motion, orally enumerated the special sex
offender probation conditions to be included in Jones's
sentence, and entered a written order reflecting the
clarification. Both the oral pronouncement and the written
order imposed conditions restricting Jones's contact with
or proximity to minors.
this appeal was pending, the Fourth District released its
decision in Levandoski v. State, 217 So.3d 215 (Fla.
4th DCA 2017), disagreeing with the holding in Snow.
"When 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
supreme court recently resolved the conflict in favor of the
Fourth District's position. Levandoski v. State,
43 Fla.L.Weekly S258 (Fla. June 7, 2018).
pleaded no contest to two charges for which sex offender
probation is not mandatory. He requested that he be sentenced
to a downward departure sentence of house arrest with the
terms of sex offender probation included therein.
Id. at S258. The trial court sentenced him to prison
followed by sex offender probation. Id.
Subsequently, Levandoski unsuccessfully moved to strike the
conditions of sex offender probation on the ground that they
were special conditions that were not orally pronounced.
Id. The supreme court held that Levandoski was on
notice of the conditions of sex offender probation because
his request for such exhibited an understanding of said
conditions and the trial court's oral pronouncement of
the sentence implicitly referenced sex offender probation by
imposing a condition found exclusively within section 948.30.
Id. at S259-260.
case, Jones entered a negotiated plea to sex offender
probation for a nonenumerated offense. Under
Levandoski, Jones must be deemed to have been on
notice of the special conditions of sex offender probation
and their oral and written impositions were effective at his
initial sentencing. In light of this, the State's effort
to have Jones's sentence clarified to comply with the
requirements of Snow proved unnecessary; the ensuing
oral pronouncement and written order are superfluous.
Jones's second argument, the parties' plea agreement
exempted Jones from sex offender probation conditions that
are required when the victim was under the age of eighteen.
This agreement was incorporated into the oral sentence, and
it was reflected in the written sentencing documents.
"Because probation is considered a sentence in Florida,
an enhancement or extension of the conditions of probation
after the conclusion of the sentencing hearing generally
constitutes a violation of the double jeopardy prohibitions
of the United States and Florida constitutions."
Burkhart v. State, 974 So.2d 1203, 1204 (Fla. 1st
DCA 2008). ...