DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROBERDD DOUCHARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D22-286

[February 22, 2023]

Appeal from the County Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Mark T. Eissey, Judge; L.T. Case No. 50-2020-CT-012820-

AXXX-SB.

Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Pablo Tapia, 

Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

After a jury trial, appellant Roberdd Douchard was convicted of driving 

under the influence, with an enhancement for having a blood alcohol level 

over .15 as charged. He appeals, contending that multiple improper 

arguments by the prosecutor warrant a new trial. He also challenges 

several conditions of his probation as having not been orally pronounced 

by the court, and he contends the court improperly imposed certain costs.

We affirm his conviction without further discussion, concluding that 

most of the prosecutor’s comments were either not objected-to, the 

objections were sustained with curative instructions, the comments were 

not error, or the comments were harmless beyond a reasonable doubt. As 

to the conditions of probation, we agree that several require reversal as 

they were not orally pronounced, but we disagree with appellant’s 

contention that the failure to orally pronounce a time to complete certain 

conditions requires reversal.
2

The trial court imposed a sentence of one-year probation with special 

conditions, and permitted early termination if appellant completed the 

conditions. Appellant objected to several of the conditions and filed a 

motion to correct sentencing errors pursuant to Florida Rule of Criminal 

Procedure 3.800(b). The trial court denied the motion.

An appellate court reviews the denial of a motion to correct sentencing 

error de novo as it involves a pure issue of law. Metellus v. State, 310 So. 

3d 90, 92 (Fla. 4th DCA 2021) (citing Brooks v. State, 199 So. 3d 974, 976 

(Fla. 4th DCA 2016)).

“Conditions 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.” Metellus, 310 So. 3d 

at 92. “When the written document results in a sentence that is more 

severe than the sentence announced in court, this Court has considered 

it a potential violation of the constitutional protection against double 

jeopardy.” Williams v. State, 957 So. 2d 600, 603 (Fla. 2007). With these 

principles in mind, we evaluate the contested conditions of probation.

Condition five of appellant’s probation provides:

You will not use intoxicants and you will not possess or 

consume any drug or narcotics unless prescribed and 

consumed as directed by a physician. You will not possess 

or consume any illegal drugs and will not visit places 

where intoxicants, drugs or other dangerous substances 

are unlawfully sold, dispensed or used. To determine the 

presence of alcohol or controlled substance you are required 

to submit to testing at your own expense as directed by 

probation. Must provide proof of prescription to 

probation by 2/5/22.

🗹🗹 (If Checked) You will not possess nor consume any type of 

alcohol; you will not consume any food or take any 

medication that contains alcohol.

🗹🗹 (If Checked) You will submit to random testing as directed 

by probation at your own expense.

(Emphasis supplied).
3

Appellant challenges the first bolded statement as requiring the word 

“knowingly” to precede “visit,” so that the condition should read: “You will 

not possess or consume any illegal drugs and will not knowingly visit 

places where intoxicants, drugs or other dangerous substances are 

unlawfully sold, dispensed or used.” He relies on Sandoval v. State, 337 

So. 3d 5 (Fla 4th DCA 2022), which remanded a probation order to include 

that term. Id. at 7; see also Nelson v. State, 669 So. 2d 1145, 1147 (Fla. 

4th DCA 1996). Nelson pointed out that the general condition of probation 

in section 948.03(1)(m), Florida Statutes (1995), included the word 

“knowingly.” See § 948.03(1)(n), Fla. Stat. (2022) (stating “[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 supplied).

Based on Sandoval and Nelson, we agree that the court should amend

the statement in condition 5 to include that the probationer must not 

“knowingly” visit the places enumerated in the statute.

Condition five also required appellant to submit to drug testing at his 

own expense. While submission to drug testing is a general condition of 

probation, see section 948.03(1)(l)1., Florida Statutes (2022), payment by 

the probationer is not part of that general condition. The court did not 

orally pronounce the requirement that appellant pay for testing, and in 

Metellus, we held that payment at the probationer’s expense was a special 

condition which must be orally pronounced. See Metellus, 310 So. 3d at 

93. We considered the requirement to pay for testing to be an increase in 

punishment. Id. at 94. Thus, the condition that appellant pay for drug 

testing must be stricken from the conditions of probation, which the State 

concedes.

Condition five next prohibited appellant from consuming narcotics 

“unless prescribed and consumed as directed by a physician.” This is a 

general condition of probation. See § 948.03(1)(n), Fla. Stat. (stating

probationer is prohibited “from using intoxicants to excess or possessing 

any drugs or narcotics unless prescribed by a physician”). The written 

order then stated that appellant must provide his probation officer proof 

of a prescription by February 5, 2022. Appellant contends that this time 

deadline was not orally pronounced and must be stricken as a violation of 

double jeopardy. We disagree.

In Lawson v. State, 969 So. 2d 222 (Fla. 2007), the supreme court 

considered whether a probationer could be violated for failure to complete 

a drug treatment program where the probation order failed to specify the 

number of chances that the defendant would have to complete the program
4

or to set a time period for compliance. Id. at 225. The supreme court held 

that the absence of specific time parameters in the probation order did not 

prevent the trial court from finding a violation of probation for failure to 

successfully complete the program. Id. at 237. The court explained:

Although the conditions [of probation] should be clearly set 

out and must mean what they say, every detail need not be 

spelled out and the language should be interpreted in its 

common, ordinary usage. Thus, a probation order that 

requires the completion of a drug treatment program but fails 

to specify time parameters should be read in a commonsense 

manner. Accordingly, a probationer who has been given the 

privilege of being placed on probation, in lieu of serving jail 

time, is put on adequate notice that the treatment program 

should be undertaken at the beginning of the probationary 

period and that, if he or she is discharged for nonattendance, 

he or she may not have another chance to complete the 

program.

Id. at 235 (internal citation omitted) (first emphasis supplied).

We agree with the State that the addition of a date for appellant to 

provide any prescriptions to assure his compliance with the condition is 

merely a detail. If this detail need not be spelled out to subject a 

probationer to violation, then it should not be a detail which, if included 

in the order, should be stricken when not orally pronounced. In other 

words, its inclusion does not amount to the addition or enhancement of 

the special condition itself.

More importantly, the inclusion of the time deadline for providing proof 

of a prescription to the probation officer did not violate double jeopardy. 

“[T]he double jeopardy protection against multiple punishments includes 

the protection against enhancements or extensions of the conditions of 

probation.” Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994). The 

establishment of a date to report to the probation officer is neither an 

enhancement nor an extension of probation. The date did not create a 

new condition of probation but merely provided a detail of how appellant 

should comply with an announced condition.

Similarly, we also conclude that condition ten, which required appellant 

to complete fifty hours of community service by completing at least ten 

hours a month, was not a violation of double jeopardy. At sentencing, the

trial court stated that appellant was required to “complete fifty hours of 

community service.” In the written probation order, condition ten states: 
5

“You will perform 50 hours of community service, enroll within 30 days 

and complete a minimum of 10 hours per month[.]”

Garrison v. State, 685 So. 2d 53 (Fla. 2d DCA 1996), is instructive. In 

Garrison, the judge ordered “that the appellant complete 100 hours of 

community service.” Id. at 55. The probation order specified that the 

appellant complete ten hours per month. The court found this 

requirement proper, stating “[w]e agree with the state that the monthly 

requirement does not alter that portion of the sentence imposed.” Id. We 

also agree that the detail of how a probationer should accomplish an 

announced condition is not an alteration of a sentence and thus does not 

violate double jeopardy.

Based upon the foregoing analysis of double jeopardy, we also find no 

error in the time period requirement for signing up for DUI school, or 

attending a Victim Impact Panel, although neither timing element was 

orally pronounced.

The State does concede that the requirement that appellant pay for the 

Victim Impact Panel was not orally pronounced and thus must be stricken. 

See Metellus, 310 So. 3d at 93.

The written order in condition eight required appellant to pay fifty 

dollars per month as the costs of probation. As the State concedes, 

subsection 948.09(1)(b), Florida Statutes (2022), permits the imposition of 

only a forty-dollar fee, unless the trial court orally pronounces an 

increased fee. See Sandoval, 337 So. 3d at 7. Because the increased fee 

was not orally pronounced, the cost must be reduced to forty dollars on 

remand.

Appellant contends that although the written order requires as a 

condition of probation the payment of a $1050 fine and $476 in costs, the 

trial court did not orally pronounce these costs as a condition. To the 

contrary, at sentencing the court stated, “[t]he law require [sic], though, 

that I impose these conditions. First, the Court is required to assess a fine 

of $1,000 dollars plus the associated court costs. I am not assessing a cost 

of prosecution, just the court costs and the fine, which are required.” The 

record shows that the mandatory costs amounted to $476, and an 

additional $50 was assessed on the $1000 fine pursuant to the mandatory 

provision of section 938.04, Florida Statutes (2022).

Section 948.03(1)(j), Florida Statutes (2022), provides as a mandatory 

condition of probation: “[p]ay any application fee assessed under s. 

27.52(1)(b) and attorney’s fees and costs assessed under s. 938.29, subject 
6

to modification based on change of circumstances.” Appellant contends 

that this condition allows only the assessment of the minimum $100 

attorney’s fee under those statutes. We interpret the statute as requiring 

the payment of this cost as a condition of probation even if not announced, 

but in this case the court did announce that all court costs would be 

assessed “as required.” We interpret this announcement to mean that the 

court was making the payment of all mandatory court costs a condition of 

probation.

Finkelstein v. State, 944 So. 2d 1226 (Fla. 4th DCA 2006), is instructive 

and allows for the imposition of the statutorily mandated costs to be a 

condition of probation. In Finkelstein, the appellant argued that 

imposition of court costs among other costs as “part of his sentence and a 

condition of probation” was error where the trial court did not determine 

first his ability to pay. Id. at 1227. We held:

Statutorily mandated costs may be imposed without notice to 

the defendant. However, 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. If this does not occur, and discretionary costs 

are made a condition of probation, they are to be stricken, and 

cannot be re-imposed.

Id. (internal citations omitted).

In this case, the trial court specifically announced that the payment of 

the fine and “required” court costs were special conditions of probation. 

The costs imposed were all mandatory, and the court was not required to 

orally pronounce each one of them. See id.

Appellant also contends that the $2 criminal justice education fee 

assessed as part of the $135 lump-sum fee of “County & Circuit Criminal 

Standard Court Costs” is not authorized. However, the imposition of the 

cost as a mandatory fee was lawful pursuant to section 938.15, Florida 

Statutes (2022), and Palm Beach County Resolution 2004-1502. Section 

938.15 provides: “In addition to the costs provided for in s. 938.01, 

municipalities and counties may assess an additional $2 for expenditures 

for criminal justice education degree programs and training courses[.]” In 

Waller v. State, 911 So. 2d 226, 228 (Fla. 2d DCA 2005), the court held 

that this $2 criminal justice fee is “mandatory.” We have likewise held the 

“$2 education fee” to be mandatory pursuant to Chapter 938. Franklin v. 

State, 321 So. 3d 256, 257 (Fla. 4th DCA 2021). Accordingly, the $2 

assessment was not entered in error.
7

Finally, as the State concedes, there is a scrivener’s error in the 

probation order which states that appellant entered a guilty plea to the 

DUI charge. Appellant was tried by a jury in this case. Accordingly, we 

remand the case to the trial court to correct the scrivener’s error.

Conclusion

While we affirm the conviction, we reverse the sentence, as several of 

the conditions of probation need correction or need to be stricken in 

accordance with this opinion. See Justice v. State, 674 So. 2d 123, 126 

(Fla. 1996). We affirm the conditions of probation which placed time 

requirements on their completion, as they did not violate double jeopardy.

Affirmed in part and reversed in part.

CIKLIN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.