The primary purpose of probation and community control is to rehabilitate, not punish, the individual while he or she is at liberty under supervision. The grant of probation or community control rests with the broad discretion of the trial judge and is a matter of legislative and judicial grace rather than right extended to the defendant usually on the basis of a pre-sentence investigation which suggests that he or she is not likely to repeat his or her conduct and could be rehabilitated while at liberty under supervision. In the matter of granting probation or community control and specifying conditions thereof trial courts are necessarily vested with a broad, but not unbridled, discretion. The statutory provisions which set out the procedures for extending probation or community control privileges to those found guilty of violations of criminal laws are not mandatory on trial judges. Nor does a defendant have an absolute right to reject probation and receive a sentence of incarceration. The trial court, not the defendant, is the one charged with the ultimate decision of whether or not a defendant receives an incarceration sentence.
The underlying concept of rehabilitation through probation sentences in Broward County presupposes the fact that the probationer or community controllee is not in prison confinement.
The purpose of the granting of probation without an actual adjudication of guilt, for instance, is rehabilitation of one who has committed the crime charged without formally and judicially branding the individual as a convicted criminal and without consequent loss of civil rights and other damning consequences. Corollary to a defendant being placed on probation or community control because it is more than likely that he will not repeat criminal conduct is the proposition that he is not entitled to remain at large if he or she persists in criminal tendencies.General Terms and Requirements of Probation
Defendants have constructive notice of all conditions of probation contained in Florida Statutes Section 948.03 General conditions of probation and community control are also published in the standard probation and community control forms found in Fla. R. Crim. P. 3.986. Therefore, there is no obligation to orally pronounce these conditions. Everyone is presumed to know the law and if, as a practical matter, the defendants themselves are not aware of these conditions, the knowledge of their attorney is imputed to them. General conditions set forth in a statute need not be orally pronounced.
The legal significance of designating the conditions contained in section 948.03 as standard conditions that do not require oral pronouncement at sentencing is based on the rationale that enactment of the statute provides all persons with constructive notice of the conditions contained therein. Standard conditions, also referred to as general conditions, are defined as those conditions that are statutorily mandated or authorized. Constructive notice together with the opportunity to be heard at sentencing regarding any objection that may be raised concerning such conditions satisfies procedural due process requirements. Therefore, a condition of probation which is statutorily authorized or mandated … may be imposed and included in a written order of probation even if not orally pronounced at sentencing.
However, if a standard condition of probation is not orally announced at sentencing and is not included in the written probation order, then it is not imposed.
Standard, or general, conditions of probation in section 948.03 not requiring oral pronouncement at sentencing include that the probationer shall:
- Report to the probation and parole supervisors as directed.
- Permit such supervisors to visit him or her at his or her home or elsewhere.
- Work faithfully at suitable employment insofar as may be possible. “Suitable employment” is not synonymous with “full-time employment.” Full-time employment is not a mandatory requirement of the statute; the trial court has the authority to require only part-time employment. The standard employment condition can also be construed to include being a full-time stay-at-home mother.
- Remain within a specified place.
- Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court. The court is required to make such reparation or restitution a condition of probation, unless it determines that clear and compelling reasons exist to the contrary. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in section 775.089, it is required to state on the record in detail the reasons therefor. See Chapter 8, dealing with restitution.
- Make payment of the debt due and owing to the state under section 960.17, subject to modification based on change of circumstances. Section 960.17 provides that any payment of benefits to, or on behalf of, a victim or other claimant under chapter 948 creates a debt due and owing to the state by any person found, in a civil, criminal, or juvenile court proceeding in which he or she is a party, to have committed such criminal act. Such a payment creates an obligation of restitution in accordance with section 775.089. The trial court, when placing on probation as provided in chapter 948 any person who owes a debt to the state as a consequence of a criminal act, is required to set as a condition of probation the payment of the debt to the state. The court may also set the schedule or amounts of payments, subject to modification based on change of circumstances, unless it finds reasons to the contrary. If the court does not order payment, or orders only partial payment, it is required to state on the record the reasons therefor.
- Pay any application fee assessed under section 27.52(1)(b) and attorney’s fees and costs assessed under section 938.29, subject to modification based on change of circumstances.
- Not associate with persons engaged in criminal activities.
- Submit to random testing as directed by the correctional probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances. If the offense was a controlled substance violation and the period of probation immediately follows a period of incarceration in the state correction system, the conditions have to include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of supervision, upon the direction of the correctional probation officer as defined in section 943.10(3). Note that, while submission to random drug testing and treatment is a general condition of probation that does not require oral pronouncement at the sentencing hearing, any requirement that the defendant pay for the testing and treatment is a special condition that must be orally pronounced at sentencing.
- Be prohibited from possessing, carrying, or owning any firearm unless authorized by the court and consented to by the probation officer.
- Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician. The probationer or community controllee is not allowed to knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.[FN20] This provision applies only to illegal drugs and doe not apply to the possession of lawful, over-the-counter medications that do not require a prescription.
- Submit to the drawing of blood or other biological specimens as prescribed in sections 948.014 and 943.325, and reimburse the appropriate agency for the costs of drawing and transmitting the blood or other biological specimens to the Florida Department of Law Enforcement (FDLE). As a condition of probation, community control, or any other court-ordered community supervision, the court must order offenders to submit to the drawing of the blood or other biological specimens when required under section 943.325 as a condition of the probation, community control, or other court-ordered community supervision.
For the purposes of section 948.014(1), F.S., “conviction” includes a finding of guilty, or entry of a plea of nolo contendere or guilty, regardless of adjudication, or, in the case of a juvenile, the finding of delinquency. Any order issued pursuant to section 948.014 must also require the convicted person to reimburse the appropriate agency for the costs of drawing and transmitting the blood or other biological specimens to FDLE.
The enumeration of specific kinds of terms and conditions in section 948.03 is not a limitation of the court’s authority and does not prevent the court from adding thereto such other or others as it considers proper. However, the sentencing court may only impose a condition of supervision allowing a defendant convicted of section 794.011, section 800.04, section 827.071, section 847.0135(5), or section 847.0145, to reside in another state, if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority. Where the order of probation or community control for a defendant convicted of such crimes does not state that relocation of the defendant’s residence is dependent upon the approval of the proper authorities where the defendant intends to move to, a change in conditions of probation or community control to allow relocation is invalid.