NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DAVID JOHN JONES, )
)
Appellant, )
)
v. ) Case No. 2D17-267
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed July 13, 2018.
Appeal from the Circuit Court for
Sarasota County; Donna Padar Berlin,
Judge.
Jason M. Reid of The Law Offices of
Carlson & Meissner, Bradenton, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa,
for Appellee.
NORTHCUTT, Judge
David 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.
In 2013 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 count two.
At the 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
Offender Probation."
Notably, 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
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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).
After 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.
While 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).
Levandoski 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
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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.
In our 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.
Regarding 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). Here, the trial court
improperly enhanced Jones's sentence by adding conditions of sex offender probation
that are required when the victim was under eighteen.
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Because the order clarifying Jones's sentence is superfluous generally
and violates double jeopardy insofar as it purports to impose sex offender probation
conditions from which Jones was exempted at his initial sentencing, we reverse the
order in its entirety.
LUCAS, J., and CASE, JAMES, ASSOCIATE SENIOR JUDGE, Concur.
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