Opinion
Nos. 78-927, 78-938.
November 28, 1979. Rehearing Denied January 4, 1980.
Appeal from the Circuit Court, Broward County, Humes T. Lasher, J.
Richard Ware Levitt of Law Offices of Gerald B. Lefcourt, New York City, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appellee.
This cause is affirmed but is remanded for resentencing.
There can be no doubt that the trial judge properly intended to give credit for time served and he said so in open court. However the actual sentence did not specify the amount of time to be credited. Section 921.161, Florida Statutes (1977) specifically requires that "[t]he credit must be for a specified period of time and shall be provided for in the sentence."
AFFIRMED AND REMANDED IN ACCORDANCE HEREWITH.
ANSTEAD, J., concurs in part and dissents in part, with opinion.
POWELL, ROM W., Associate Judge, concurs in part and dissents in part, with opinion.
LETTS, J., concurring specially with opinion.
As to the provision requiring the appellant to live honorably at all times, such a proviso has by inference been approved of by our Supreme Court. In Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293, 296 (1943), a requirement that a probationer ". . . in all respects conduct himself honorably . . ." was not found to be objectionable. Consequently I must disagree with Judge Anstead's special concurrence.
The appellants also claim that a special condition of their probation stating: "(9) You will live honorably at all times" is unconstitutionally vague and should be stricken. I agree. A probationer should be put on reasonable notice of any conduct prohibited during his term of probation. Almond v. State, 350 So.2d 811 (Fla. 4th DCA 1977); Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952). While I am in full agreement that everyone, generally, and probationers, in particular, should conduct themselves honorably, I believe that such a requirement is too broad and ambiguous to establish a clear guideline for the appellant's conduct during probation. In its other provisions prohibiting violations of the law, restricting residency, etc., the order of probation more than adequately sets objective standards of conduct for the probationer. In contrast, the special provision is nothing more than a vague catch-all which is subject to varying interpretations depending on the subjective moral code of the individual.
I would not require a resentencing since Appellant was placed on probation. I think that all that is necessary is that the pre-trial detention time be reflected in the Court file so that it would be available in the event Appellant's probation is revoked in the future and he is sentenced to a jail term. If this has not been done, Appellant's counsel and the prosecutor could appear before the sentencing judge, settle the number of days to be given as a credit and the judge could direct the Clerk to enter an original amended minute entry to that effect.
I agree with my Brother Anstead that Special Condition (9) is too vague to support a revocation on that ground alone; however, I would not strike it but would construe it to provide no obligation upon the Appellant-Probationer additional to those obligations required of him in the other general and special conditions of the order.