DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEVEN J. MARKS,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D21-1063
[August 18, 2021]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Edward H. Merrigan, Jr., Judge; L.T.
Case No. 12-011555-CF10A.
Steven J. Marks, Orlando, pro se.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for respondent.
PER CURIAM.
Steven Marks petitions for certiorari, seeking to quash an order denying
his motion to remove a condition of his probation that required him to
wear an ankle monitor. He argues that the probation order contains a
special condition stating that he is subject to mandatory electronic
monitoring if, among other things, his victims were 15 years old or
younger. He argues they were not:
Petitioner was never alleged in the Information to have had
any sexual activity with any person fifteen (15) years or
younger. There was never any judicial finding made by the
Court at Sentencing, or at any other time, that found that the
Petitioner engaged in sexual activity with anyone fifteen (15)
years of age or younger. It was also never alleged or
determined that the child pornography possessed by the
Petitioner constituted [] images of children fifteen (15) years of
age or younger involved in sexual activity.
In response to the petition, the state agreed that the court should grant
the petition and remand the case for reconsideration of the petitioner’s
request to modify his conditions of probation. We agree. On remand, the
court must determine whether the state presented evidence about the age
of the victims. If the state did not do so prior to the imposition of the
sentence, the state cannot do so now. See, e.g., Richards v. State, 288 So.
3d 574, 576 (Fla. 2020).
Based on the foregoing, we grant the petition and quash the order.
Petition granted and order quashed.
WARNER, MAY, and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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