Florida/Georgia Personal Injury & Workers Compensation

...We have for review a decision of the Second District Court of Appeal which passed upon the following question certified to be of great public importance: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? *763 Williams v....

...ion of probation. Id. (citing Curry v. State, 682 So.2d 1091 (Fla.1996); Wallace v. State, 682 So.2d 1139 (Fla. 2d DCA 1996); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995)). The State, however, argued that none of these precedent cases addressed section 948.09(6), Florida Statutes (1995), [3] which authorizes the Department of Corrections to require offenders under any form of supervision to submit to and pay for urinalysis drug testing....

...Turning to the issue in this case, the State acknowledges that this Court has determined that requiring a defendant to pay for drug testing is a special condition of probation because it is not statutorily authorized. See Brock v. State, 688 So.2d 909, 911 n. 4 (Fla.1997); Curry. However, the State argues that section 948.09(6), Florida Statutes (1995), provides a statutory basis for classifying a requirement that a defendant pay for urinalysis drug testing as a general condition of probation....

...insofar as they relate to requiring the respondent to pay for urinalysis drug testing. We do not believe it appropriate in this case to recast the certified question as the State suggests so as to limit it to urinalysis testing for drug usage. While section 948.09(6), Florida Statutes (1995), is limited to "urinalysis testing," the trial court's order, in this case, specifies the broader "drug testing," and the certified question specifically asks whether requiring a defendant to pay for "drug testing" is a general condition of probation. Moreover, the statute cited by the State merely provides the Department of Corrections with the discretion to require payment for urinalysis testing. We hold that the discretion afforded to the Department of Corrections in section 948.09(6), Florida Statutes (1995), is insufficient to serve as statutory notice that the court can make payment for drug testing a mandatory condition of probation....

...shall be used by all courts." (Emphasis added.) [2] At sentencing, the trial court ordered respondent to undergo random urinalysis testing as a condition of probation. The trial court did not, however, make this specific form of testing a part of its order of probation. [3] Section 948.09(6), Florida Statutes (1995), provides in relevant part: In addition to any other required contributions, the department, at its discretion, may require offenders under any form of supervision to submit to and pay for urinalysis testing to identify drug usage as part of the rehabilitation program....

...5th DCA 1996), the condition must be stricken. Appellant contends that condition 13 must be stricken because it was not orally pronounced, but we agree with the state that assessment of the statutorily mandated $2.00 per month surcharge to the Department of Corrections, pursuant to section 948.09, Florida Statutes (1995), need not be orally pronounced....

...d failure to pay costs of supervision. The establishment of a payment schedule for court costs is a judicial responsibility that cannot be delegated to a probation officer. See Tracy v. State, 673 So.2d 544 (Fla. 4th DCA 1996). The state argues that section 948.09(7), Florida Statutes (1995), permits courts to delegate to the Department of Corrections the responsibility of establishing a payment schedule. The statute reads: 948.09 Payment for cost of supervision and rehabilitation * * * * * * (7) The department shall establish a payment plan for all costs ordered by the courts for collection by the department.......

...ailed to submit written monthly reports for the period July-December 1999. Condition (2) required Appellant to pay $25.00 monthly to the State of Florida for the cost of supervision unless otherwise waived, plus a $2.00 monthly surcharge pursuant to section 948.09(1)(a)2., Florida Statutes (1999)....

...robation which must be announced at sentencing. See, e.g., Wallace v. State, 682 So.2d 1139 (Fla. 2d DCA 1996) (drug testing); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995) (alcohol testing). The State in this case has pointed out, however, that section 948.09(6), Florida Statutes (1995), provides that a defendant on supervision may be required by the Department of Corrections to pay for drug urinalysis and that the failure to pay may be considered a ground for revocation by the court....

...ng is a special condition of probation, but certify the following question to the Florida Supreme Court: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL *752 CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? Affirmed in part, reversed in part and remanded for proceedings consistent herewith....

...reasons set forth below. We affirm the suspension of appellant's driver's license as a condition of probation, but remand for correction of the probation order to reflect the manner in which such suspension is to be effected. Under the provisions of section 948.09(1), Florida Statutes (1991), the trial court is authorized to require a probationer to pay for the cost of supervision. Section 948.09(1) provides in part: (1) Any person under ......

...ounty Work Program. Rather, a reading of the statutory provision in its entirety evinces legislative intent that such community-based corrections programs shall be funded by the state, to be effected in part by the assessments authorized pursuant to section 948.09(1). This intent is evident when section 948.51 is read in pari materia with the section 948.09(1) provision that "[f]unds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature." In other words, as appellant contends, there appears to be no statutory authority for the additional $500.00 assessed in this case for cost of supervision in the Bay County Work Program. Rather, section 948.09(1), limiting such assessment to no less than $40 and no more than $50 per month, seems to be the overall vehicle by which the Department of Corrections supplements legislative appropriations to fund its programs....

...In Martin, supra, the court made no reference to Thicklin, and proceeded to address assessment of costs for participation in the Bay County Work Program which were imposed in connection with Martin's conviction for possession of cocaine and sale of cocaine. We observed that section 948.09(1), Florida Statutes (1991), authorizes the trial court to require a probationer to pay for the costs of supervision....

...ounty Work Program. Rather, a reading of the statutory provision in its entirety evinces legislative intent that such community-based corrections programs shall be funded by the state, to be effected in part by the assessments authorized pursuant to section 948.09(1). This intent is evident when section 948.51 is read in pari materia with the section 948.09(1) provision that "[f]unds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature." In other words, as appellant contends, there appears to be no statutory authority for the additional $500.00 assessed in this case for cost of supervision in the Bay County Work Program. Rather, section 948.09(1), limiting such assessment to no less than $40 and no more than $50 per month, seems to be the overall vehicle by which the Department of Corrections supplements legislative appropriations to fund its programs....

...Even considering the plea agreement present in the instant case, however, we are unable to say that Martin should not control. First, Blanchette agreed to public service work hours plus fee, but he did not expressly agree to pay any more than the assessment allowed by section 948.09(1), as construed by this court in Martin....

...do so.” Violation 7 reads "Violation of Condition (1-7) of the Order of Probation by failing to pay the State of Florida the amount of $25.00 per month toward cost of supervision, plus a 4% surcharge, unless otherwise exempted, in accordance with Section 948.09, Florida Statutes, and as grounds for belief that the offender violated his probation, Officer Schultz states that the offender has failed to make a payment and owes $450.00 as of July 15, 2010.” Violation 8 reads "Violation of Speci...

...See, e.g., Wallace v. State, 682 So.2d 1139 (Fla. 2d DCA 1996) (drug testing); Malone v. State, 652 So.2d 902 (Fla. 2d DCA 1995) (alcohol testing). However, as we stated in our recent opinion in Williams v. State, 700 So.2d 750 (Fla. 2d DCA 1997), section 948.09(6), Florida Statutes (1995), provides that a defendant on supervision may be required by the Department of Corrections to pay for drug urinalysis and that the failure to pay may be considered a ground for revocation by the court....

...Accordingly, we strike this special condition of probation. As we did in Williams, No. 96-01923, we certify the following question to the Florida Supreme Court: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? We also strike condition thirteen, which requires the defendant to "waive extradition should a violation of supervision occur," because it is a special condition that was not orally pronounced....

...3 The trial judge expressed anger at the Department for doing so, 4 and made offhand comments to the public defender for 3 The statutory basis upon which the Department could have waived Thompson’s payment of supervision costs is that it would be an undue hardship given her responsibilities to her three dependents. § 948.09(3)(e), Fla....

...orally announced. Justice v. State, 674 So.2d 123 (Fla.1996); Jackson v. State, 685 So.2d 1386 (Fla. 5th DCA 1997). Because the trial court failed to do so, that provision is stricken and may not be reimposed. Justice. The state has pointed out that section 948.09(6), Florida Statutes (1995) appears to contain the requirement to pay for such testing and the Second District has certified the question whether requiring the probationer to pay for random drug testing is actually a general condition or rather a special condition that requires oral announcement....

...We join the Second District Court of Appeal in certifying the following question to the Florida Supreme Court as one of great public importance: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? The third condition Porchia challenges was not, in fact, imposed because he was not placed on drug offender probation....

pay any more than the assessment allowed by section 948.09(1)[, Florida Statutes (1991)].” 620 So.2d at

PER CURIAM. We reverse the portion of Appellant’s probation order which provides that Appellant may perform community service in lieu of paying the costs of supervision required by section 948.09, Florida Statutes (1994). See Royster v. State, 657 So.2d 36 (Fla. 4th DCA 1995). It is also clear from the face of section 948.09(3) that any authority to exempt an individual from paying all or part of his cost of supervision lies initially with the Department of Corrections....

...We affirm the appellant’s conviction and sentence, except as to the condition of the appellant’s probation calling for community service in lieu of the costs of supervision of probation which we reverse. Royster v. State, 657 So.2d 36 (Fla. 4th DCA 1995). It is also clear from the face of section 948.09(3), Florida Statutes (1994), that any authority to exempt an individual from paying all or part of his costs of supervision lies initially with the Department of Corrections....

paying the costs of supervision required by section 948.09, Florida Statutes (1994). See Royster v. State

in this case has pointed out, however, that section 948.09(6), Florida Statutes (1995), provides that

...That was erroneous. See § 938.27(1), Fla. Stat. (2016); Richards v. State, 288 So. 3d 574, 577 (Fla. 2020); Felton v. State, 939 So. 2d 1159 (Fla. 4th DCA 2006). Second, Appellant’s probation order imposed both a $2 surcharge and a 4% surcharge under section 948.09, Florida Statutes (2016), while the statute solely authorizes the former. See § 948.09(1)(a)2., Fla....

...for the tests unless payment is waived by your officer,” the order stated: “You will be required to pay for the tests unless exempt by the court.” The supreme court in Williams held that “the discretion afforded to the Department of Corrections in section 948.09(6), Florida Statutes (1995), is insufficient to serve as statutory 4 was a special condition of probation that was not orally announced at sentencing, it could not be included in the written o...

...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....

...to a prison term, even though neither probation, community control, nor other forms of supervision were part of his sentence. The State concedes the point in its brief, attributing it to a likely scrivener’s error; we agree that Thompson’s position is well taken. See § 948.09(1)(a)(1), Fla....

...: a Cocoa [sic] Cola can with a pinhole on one side containing cocaine residue. Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Conditional Release in that he did willfully fail to comply with Florida Statutes 948.09 (Formerly 945.30) and as of February 11, 2003, he did fail to make $50.00 per month cost of supervision payments, and is $312.41 in arrears....

...Subject also testified he was just getting by. Ex. H at 5. In his Summary, the hearing officer found Petitioner to be guilty of this violation "[biased on his own admission of guilt." Ex. H. at 5. The hearing officer further found Petitioner "did willfully fail to comply with Florida Statute 948.09 formerly 945.30 and as of February 11, 2003, he did fail to make $30.00 per month cost of supervision payments and is $312.41 in arrears." Id....

...As to violation two (failure to pay costs of supervision), the hearing officer found that, "[b]ased on [Petitioner's] own admission of guilt, subject was found guilty of violating Condition 7 ... in that he did willfully fail to comply with Florida Statute 948.09 ......

...ave assumed that such determination could have been made independently by the Commission even without its knowledge of Mr. Hogan's testimony (which it did not have) based on the mandatory nature of this statutory condition of release. See Fla. Stat. § 948.09 ("Any person ......

...We agree, however, that the trial court erred in imposing supervision costs above $40 in the absence of an oral pronouncement. As such, we reduce the cost of supervision to $40 a month. Paris v. State, 47 Fla. L. Weekly D445 (Fla. 4th DCA Feb. 16, 2022); § 948.09(1)(b), Fla....

...We strike the requirement that Hernandez pay for drug testing, but again certify the following question to the Florida Supreme Court: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? See Smith, 702 So.2d at 1306 ; Williams v....

...general condition which need not be pronounced at the time sentence is imposed. Brock v. State, 688 So.2d 909 (Fla.1997). The state argues that the second sentence of paragraph 12, requiring Parrish to pay the costs of such testing, is authorized by section 948.09(6), Florida Statutes....

OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE

...On the other hand, special conditions of probation are those conditions not authorized by statute or court rule that must be orally pronounced to comport with due process. Marquis, 339 So. 3d at 367 (quoting Metellus, 310 So. 3d at 92). Monthly costs of supervision are authorized by section 948.09, Florida Statutes (2022), which provides in part: (1)(a)1....

...must, as a condition of any placement, pay the department a total sum of money equal to the total month or portion of a month of 2  supervision times the court-ordered amount, but not to exceed the actual per diem cost of the supervision. § 948.09(1)(a)1., Fla....

...4th DCA 2022) (finding the requirement to pay supervisory costs was a general condition of probation not requiring oral pronouncement); Hart, 668 So. 2d at 592. The pertinent question raised in this appeal centers on the issue of the amount to be assessed for the cost of supervision. As Frank correctly points out, section 948.09 does not provide for a $50.00 cost of supervision for a defendant on felony probation. Rather, section 948.09(1)(b), Florida Statutes (2022), provides that any person placed on misdemeanor probation by a county court must contribute not less than $40 per month for supervision. However, section 948.09 places no minimum value for the cost of felony supervision. See § 948.09(1)(a)1., Fla....

...public defender fee to statutorily required minimum or to hold a hearing to obtain evidence in support of amount greater than minimum). The trial court did not err by failing to orally pronounce the exact cost of supervision to the extent that no cost could be imposed. While section 948.09 does not set a specific value, section 948.09 clearly provides that a person placed on probation “must” pay “a total sum of money equal to the total month or portion of a month of supervision times the court- ordered amount, but not to exceed the actual per diem cost of the supervision.” § 948.09(1)(a)1., Fla....

...ecial condition that was not orally pronounced and must be stricken. Reiter . All other aspects of the challenged probation conditions are affirmed because no oral pronouncement was necessary; the defendant was put on notice of those requirements by section 948.09, Florida Statutes (1995), section 958.04, Florida Statutes (1993), or Form 3.986, Florida Rules of Criminal Procedure....

...We affirm and certify to the Florida Supreme Court the following question certified in Williams v. State, 700 So.2d 750 (Fla. 2d DCA 1997): SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? PARKER, C.J., and QUINCE and WHATLEY, JJ., concur.

...The defendant raises five issues—the first two of which challenge her conviction, and the latter three of which challenge her sentence. Of these five issues, only one has merit. On that issue, the defendant argues the circuit court erred in imposing a $50.00 monthly supervision cost under section 948.09(1)(a)1., Florida Statutes (2023). Section 948.09(1)(a)1....

...e court-ordered amount, but not to exceed the actual per diem cost of the supervision. … The rules shall incorporate provisions by which the offender’s ability to pay is linked to an established written payment plan. … § 948.09(1)(a)1., Fla. Stat. (2023). According to the defendant, although “it is a general condition of probation for a trial court to impose some cost of probation, nothing in [section 948.09(1)(a)1.] specifically authorizes a trial court to impose a $50 cost.” Applying de novo review, we agree with this argument....

...Our recent opinion in Frank v. State, 391 So. 3d 918 (Fla. 4th DCA 2024), is dispositive: The pertinent question raised in this appeal centers on the issue of the amount to be assessed for the cost of supervision. As [the defendant] correctly points out, section 948.09 does not provide for a $50.00 cost of supervision for a defendant on felony probation. Rather, section 948.09(1)(b), Florida Statutes (2022), provides that any person placed on misdemeanor probation by a county court must contribute not less than $40 per month for supervision. However, section 948.09 places no minimum value for the cost of felony supervision. See § 948.09(1)(a)1., Fla. Stat. (2022). … [B]ecause no statutory authority sets that cost amount, an evidentiary hearing on the proper amount is required. … … While section 948.09 does not set a specific value, section 948.09 clearly provides that a person placed on probation “must” pay “a total sum of money equal to the total month or portion of a month of supervision times the court- ordered amount, but not to exceed the actual per diem cost of the supervision.” § 948.09(1)(a)1., Fla....

...3rd DCA 2008) (holding that a trial court’s ruling on the admissibility of the excited utterance exception to hearsay is reviewed for an abuse of discretion). Because the trial court imposed a monthly probation supervision fee in excess of Florida Statutes section 948.09(1)(b)’s forty-dollar fee without any accompanying oral pronouncement explaining the deviation, we are compelled to reverse that portion of Arcamone’s sentence....

...We reverse on that issue and remand for the trial court to enter a corrected probation order that be required to pay for the tests unless exempt by the court.” The supreme court in State v. Williams held that “the discretion afforded to the Department of Corrections in section 948.09(6), Florida Statutes (1995), is insufficient to serve as statutory notice that the court can make payment for drug testing a mandatory condition of probation.” State v....

...We have for review a decision addressing the following question certified to be of great public importance: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? Edwards v....

...the defendant would be required to pay as a condition of his probation $50 per month toward the cost of his supervision. Without any accompanying oral pronouncement, the trial court was authorized to impose only a $40 monthly supervision charge. See § 948.09(1)(b), Fla....

...4th DCA 2021). Next, the defendant argues the trial court erred in ordering him to pay $65 for the first month of the probationary period and $55 each month thereafter because these discretionary costs were not pronounced at sentencing. The State agrees and so do we. Section 948.09(1)(b), Florida Statutes (2020), provides that any person placed on misdemeanor probation by a county court must contribute not less than $40 per month....

...proven or admitted, unless he or she has previously been adjudged guilty . . . .”) (emphasis added). Second, even though the trial court terminated White’s probation, the sentencing paperwork requires him to pay costs of supervision. See id. § 948.09(1)(a)1....

...of Health and Rehab. Servs., 641 So.2d 957 (Fla. 3d DCA 1994). Furthermore, the Parole Commission's discretion is limited in many ways. For example, there are limits placed on the costs of supervision imposed by the Parole Commission. See Fla. Stat. § 948.09(1)(a)1 (1999)....

...We conclude that section 947.1405(6) does not violate the separation of powers provision under the logic of Harvin. The order denying Gray's petition is affirmed. AFFIRMED. SHARP, W., and ORFINGER, R.B., JJ., concur. NOTES [1] Fla. Stat. § 947.146 (1988). [2] Section 948.09(1)(a)1 provides: Any person ordered by the court, the Department of Corrections, or the parole commission to be placed on probation, drug offender probation, community control, parole, control release, provisional release supervision,...

PER CURIAM. We have for review the following question certified to be of great public importance: SHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT? Porchia v....

...No probation, community control, or other supervision was imposed. Despite the lack of a supervisory sentence, the trial court’s monetary obligations order required Fortson to pay for costs of supervision and electronic monitoring. The imposition of costs for supervision is governed by section 948.09(1)(a)1., which provides: Any person ordered by the court, the Department of Corrections, or the Florida Commission on Offender Review to be placed under supervision under this chapter, chapter 944, chapter 945...

...or chapter 958, or in a pretrial intervention program, must . . . pay the department a total sum of money equal to the total month or portion of a month of supervision times the court-ordered amount, but not to exceed the actual per diem cost of the supervision. § 948.09(1)(a)1., Fla....

...4th DCA 2021) (emphases added; brackets and citation omitted). The defendant’s probation condition (8) stated the defendant would “pay $50 per month toward the cost of … supervision.” Without any accompanying oral pronouncement, the trial court was authorized to impose only a $40 monthly supervision charge. See § 948.09(1)(b), Fla. Stat....

...court must contribute not less than $40 per month, as decided by the sentencing court, to the court-approved public or private entity providing misdemeanor supervision.”). We therefore must reverse the imposition of the $50 monthly supervision cost, and remand for the imposition of section 948.09(1)(b)’s $40 monthly supervision cost as a condition of the defendant’s probation....

...onviction and sentence for misdemeanor battery. We affirm without discussion on all but one issue raised on appeal. Mobley argues, and the State agrees, that the court erred when it imposed a cost of supervision in excess of the amount authorized by section 948.09(1)(b), Florida Statutes (2022), and when it indicated Mobley pled guilty to the charges....