Florida Supreme Court – Criminal Headnotes – June 7, 2018
MICHAEL LEVANDOSKI V. STATE OF FLORIDA – UNTIMELY MOTION TO CORRECT ILLEGAL SENTENCE; SPECIAL CONDITIONS OF PROBATION FOR SEX OFFENDER; NOT ORALLY PRONOUNCED
Appeal from the denial of a motion to correct illegal sentence. The 4th District appeals court certified a question for conflict with the decision of the 1st District in Snow v. State, 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).
The defendant pleaded no contest to lewd computer solicitation of a child, section 847.0135(3), and traveling to meet a minor for unlawful sexual activity, section 847.0135(4) of the Florida statutes. He moved for a downward departure, asking that he be sentenced to “sex offender probation with house arrest,” rather than a prison term. The trial court denied this motion and sentenced the defendant to forty-eight months’ incarceration followed by one year of “sex offender probation” on the solicitation count, and fifteen years of “sex offender probation” on the traveling count, to run consecutively.
In imposing these sentences, the court orally stated it was imposing special conditions forbidding the defendant to access the internet during the period of his probation. The written order imposed not only this condition, but all of the conditions recited in section 948.30 of the Florida statutes. The defendant did not immediately challenge the sentence.
Upon his release from prison, the defendant filed a motion to strike the section 948.30 conditions from his sentence, arguing that they were neither mandatory nor pronounced at the oral sentencing. The trial court denied the motion, and the defendant appealed.
The 4th District treated the motion as a motion to correct an illegal sentence under Rule 3.800(a) and addressed the motion on the merits, despite the fact that the defendant had not raised the issue on his direct appeal from the conviction and sentencing, affirmed without opinion in 2012. The appeals court ruled that while due process does require that any non-mandatory, special conditions of probation be recited at the oral sentencing, in this case the defendant had notice that the conditions enumerated at section 948.30 were being imposed. Both the state and the defense had used the phrase “sex offender probation” to describe the conditions that would have been imposed under a negotiated plea, and the trial court itself, in emphasizing the special condition that the defendant not access the internet, said “this is part of the sex offender probation anyway,” clearly indicating that it was imposing all of the conditions of section 948.30.
The appeals court noted, however, that this result appeared to conflict with the decision of the 1st District appeals court in Snow, and certified the question to the Supreme Court.
The Supreme Court approved the decision, and disapproved Snow “to the extent it holds each special condition of sex offender probation must be orally pronounced.”
Justice Pariente, concurring in part and dissenting in part, would simply have affirmed the denial of the motion to correct sentence as untimely, without reaching the substantive question. But if the question had been raised timely, she would have ruled that a generic reference to “sex offender probation” is not sufficient to put a defendant on notice of the conditions enumerated in section 948.30, which does not itself use the quoted phrase and does not cross-reference either of the two subparagraphs of section 847.0135 under which the defendant here was convicted.
Justice Quince, dissenting, agreed with Justice Pariente on the substantive point, and noted that the record here was unclear on the question whether the defendant had actual notice of the terms of the written sentencing order in time to have raised the issue on a post-conviction motion.