West Palm Beach, Florida - Criminal Defense lawyer represented defendant with a conviction and sentence for a misdemeanor battery charge.

For the misdemeanor battery, the trial court sentenced Appellant to

twelve months of probation with a provision for early termination after six

months. After sentencing, the written probation order included conditions

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which were not announced during sentencing. Specifically, Condition 1

stated: "You will not change your residence or employment or leave the

county of your residence without first procuring the consent of your

Probation Supervisor.” Condition 5, in part, stated that Appellant "will

[not] visit places where intoxicants, drugs or other dangerous substances

are unlawfully sold, dispensed or used unlawfully.” Condition 8 required

that Appellant pay $50 per month toward the cost of her supervision, and

Condition 15 required Appellant to enroll in and complete a

DUI/Substance Abuse Program.

Appellant filed a timely Florida Rule of Criminal Procedure 3.800(b)(2)

motion and argued that these conditions in the written probation order

were improperly imposed special conditions which had not been orally

pronounced at sentencing. In response, the trial court struck the

condition requiring that Appellant attend a DUI or substance abuse

program, but denied the motion as to the other three conditions.

Subsequently, Appellant gave notice of appeal.

Appellate Analysis

Appellant argues that the trial court erred by imposing three special

probation conditions in the written probation order which were not orally

pronounced at sentencing. Specifically, Appellant asserts that the

following conditions are special conditions because they are not authorized

by section 948.03, Florida Statutes (2020), or Florida Rule of Criminal

Procedure 3.986(e): (1) paying $50 per month towards the cost of her

probation; (2) obtaining approval from her probation officer before

changing her residence, employment, or leaving the county; and (3) not

visiting places where intoxicants, drugs or other dangerous substances are

unlawfully sold, dispensed, or used unlawfully.

In response, the State argues that the trial court did not err in imposing

those conditions because all are general probation conditions which do not

require an oral pronouncement.

"The standard of review for a motion to correct a sentencing error is de

novo.” Fain v. State, 308 So. 3d 190, 192 (Fla. 4th DCA 2020) (quoting

Terry v. State, 263 So. 3d 799, 802 (Fla. 4th DCA 2019)).

"[G]eneral 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.'”

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Metellus v. State, 310 So. 3d 90, 92 (Fla. 4th DCA 2021) (quoting State v.

Hart, 668 So. 2d 589, 592-93 (Fla. 1996)).

On the other hand, "[c]onditions 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. "[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); 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).

Therefore, we must determine whether each probation condition which

Appellant challenges qualifies as a general condition or special condition.

Paying $50 Per Month for Cost of Supervision

Section 948.09(1)(b), Florida Statutes (2020), provides: "Any person

placed on misdemeanor probation by a county court must contribute not

less than $40 per month” towards the cost of their supervision. A trial

court may impose statutorily mandated costs without notice, "[h]owever,

the trial court is required to give the defendant notice of the imposition of

discretionary costs and to make an oral pronouncement of such costs and

their statutory basis.” Sandoval v. State, 47 Fla. L. Weekly D441, D442

(Fla. 4th DCA Feb. 16, 2022).

In the present case, Appellant correctly argues the trial court erred by

requiring her to pay $50 per month towards her probation because this

amount is greater than what is authorized by statute and thus

discretionary. We have recently held that a trial court is required to orally

pronounce the imposition of a $50, $55, and $65 monthly charge for the

cost of supervision. See id. (reversing a special condition to pay $65 for

the first month of probation and $55 for the remaining months, where no

oral pronouncement was made); Paris v. State, 47 Fla. L. Weekly D445,

D446 (Fla. 4th DCA Feb. 16, 2022) (reversing a special condition to pay

$50 month towards the cost of supervision).

Here, like in Paris, the trial court's written probation order imposed a

$50 monthly charge towards the cost of Appellant's probation. Because

this charge is greater than the statutorily mandated $40 per month, it is

a special condition which should have been orally pronounced during

sentencing. Based on Sandoval and Paris, we reverse the probation

condition ordering Appellant to pay $50 per month for supervision cost

and remand for entry of a corrected probation order reducing the

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supervision cost to $40 per month. See Sandoval, 47 Fla. L. Weekly at

D442; Paris, 47 Fla. L. Weekly at D446.

Not Changing Residence or Employment, or Leaving County of Residence,

Without Probation Supervisor's Consent

Appellant next argues the trial court did not orally pronounce that she

would need to obtain her probation officer's consent before leaving the

county of her residence, changing her residence, or changing her

employment. Appellant contends these restrictions constitute special

probation conditions which the trial court was required to announce at

sentencing. The State counter-argues the restrictions are consistent with

the general probation conditions, and that cooperating with the probation

officer is a necessary component of probation.

Section 948.03 provides:

(1) The court shall determine the terms and conditions of

probation. Conditions specified in this section do not require

oral pronouncement at the time of sentencing and may be

considered standard conditions of probation. These

conditions may include among them the following, that the

probationer or offender in community control shall:

(a) Report to the probation officer as directed.

(b) Permit the probation officer to visit him or her at his or her

home or elsewhere.

(c) Work faithfully at suitable employment insofar as may be

possible.

(d) Remain within a specified place.

§ 948.03(1)(a)-(d), Fla. Stat. (2020) (emphasis added).

Pursuant to section 948.03(1), reporting to the probation officer as

directed, permitting the probation officer to visit the probationer at his or

her home or elsewhere, and remaining within a specified place are

standard probation conditions. Id. Significantly, section 948.06, Florida

Statutes (2020), which governs probation violations, provides that

"[f]ailure to report a change in address or other required information,”

"[l]eaving the county without permission,” and "[f]ailure to report a change

in employment” are "low-risk violation[s].” § 948.06(9)(b)3., 8., 9., Fla.

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Stat. (2020). Reading section 948.03 in para materia with section 948.06,

we hold that the condition requiring Appellant to obtain her probation

officer's consent before leaving a specified place – her county of residence

and the jurisdiction of the court – and before changing her address or place

of employment, is consistent with standard conditions of probation. Under

section 948.03(1)(a), Appellant is required to report to her probation officer

as directed, and it is not uncommon for probation officers to meet

probationers at the probationer's residence or place of employment.

Cooperating fully and maintaining contact with the probation officer are

necessary components of being under probation and community control

supervision. See W.J. v. State, 688 So. 2d 954, 956-57 (Fla. 4th DCA 1997)

(holding that condition requiring juvenile to not change place of residence

without prior knowledge and consent of the community control counselor

was valid despite not being orally pronounced). Thus, we affirm the

probation order as to Condition 1.

Not Visiting Places Where Intoxicants, Drugs or Other Dangerous

Substances Are Unlawfully Sold, Dispensed, or Used

Finally, Appellant argues that the trial court erred by entering a

probation order which required she not "visit places where intoxicants,

drugs or other dangerous substances are unlawfully sold, dispensed or

used,” because it omits the word "knowingly”.

Section 948.03(1)(n), Florida Statutes (2020), states that "[t]he

probationer or community controllee may not knowingly visit places where

intoxicants, drugs, or other dangerous substances are unlawfully sold,

dispensed, or used.” (emphasis added). Although we previously have held

the omission of 948.03(1)(n)'s knowledge element in a probation order is

not necessarily error, we have remanded suggesting that the trial court

amend the condition "to reflect that appellant may not 'knowingly visit'

such prohibited places.” See Nelson v. State, 669 So. 2d 1145, 1147 (Fla.

4th DCA 1996) (omitting the word "knowingly” was not error but

remanding to amend the condition); Sandoval, 47 Fla. L. Weekly at D442

(suggesting upon remand the trial court amend the condition to reflect the

defendant may not "knowingly visit” prohibited places).

Because we are remanding for the probation order to be amended as to

another condition, we similarly suggest that the trial court include the

knowledge element in the condition that Appellant not visit the places

currently described in Condition 5 of the order under review.

Accordingly, we affirm Appellant’s judgment and probation sentence

imposed for misdemeanor battery, but reverse the order placing Appellant

on probation insofar as it imposes an unauthorized $50 monthly

supervision cost, and direct the trial court to reduce the monthly

supervision cost to $40. We also suggest that on remand the trial court

modify Condition 5 of the probation order to make clear that Appellant

shall not “knowingly visit” the prohibited places described therein.