NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

DAVID JOHN JONES, )

)

Appellant, )

)

v. ) Case No. 2D17-267

)

STATE OF FLORIDA, )

)

Appellee. )

________________________________ )

Opinion filed July 13, 2018.

Appeal from the Circuit Court for

Sarasota County; Donna Padar Berlin,

Judge.

Jason M. Reid of The Law Offices of

Carlson & Meissner, Bradenton, for

Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and David Campbell, 

Assistant Attorney General, Tampa,

for Appellee.

NORTHCUTT, Judge

David John Jones appeals an "order clarifying defendant's sentence" that 

imposed special conditions of sex offender probation. Jones contends that adding sex 

offender probation conditions subsequent to his sentencing violated double jeopardy 
- 2 -

principles. Failing that, he maintains that the specific conditions restricting his contact 

with or proximity to children were improper. We reverse.

In 2013 Jones entered a negotiated plea to traveling to 

seduce/solicit/entice a child to commit a sex act (count two), in violation of section 

847.0135(4)(a), Florida Statutes (2012), and to transmission of material harmful to 

minors (count three), in violation of section 847.0138(2), Florida Statutes (2012). He 

was sentenced to 25.05 months' prison followed by six years' probation on both counts, 

with a designation of sex offender probation on count two.

At the plea hearing and again at the sentencing hearing, it was agreed by 

all present that there had been no actual victim under age eighteen and sex offender 

probation conditions required in cases involving minor victims would not apply. 

Accordingly, the court entered a form order of sex offender probation that set forth the 

statutory special conditions attendant to sex offender probation. Consistent with the 

plea agreement, the court checked a box to implement the following qualification: "No 

victim under 18, therefore, no prohibition as to contact with minors as a condition of Sex 

Offender Probation."

Notably, at the sentencing hearing the judge did not orally enumerate the 

special conditions associated with the sex offender probation. This was significant 

because traveling to seduce/solicit/entice a child to commit a sex act is not an 

enumerated offense for which sex offender probation is mandatory under section 

948.30(1), Florida Statutes (2012). Special conditions of sex offender probation may be 

imposed for a nonenumerated offense if they are reasonably related to the offense or to 

future criminality. Villanueva v. State, 200 So. 3d 47, 53 (Fla. 2016). But after Jones 
- 3 -

was sentenced the First District held that for an offense that is not enumerated under 

section 948.30(1), the component conditions of sex offender probation must be orally 

announced at sentencing and that those not orally announced must be stricken. Snow 

v. State, 157 So. 3d 559, 561-62 (Fla. 1st DCA 2015), quashed on other grounds, No. 

SC15-536 (Fla. 2016), clarified on remand, 193 So. 3d 1091 (Fla. 1st DCA 2016).

After Jones completed the incarcerative portion of his sentence, the State 

filed a motion asking the trial court to clarify the sentence by orally announcing specific 

special conditions of sex offender probation as required by Snow. Over defense 

counsel's objection, the court granted the State’s motion, orally enumerated the special 

sex offender probation conditions to be included in Jones's sentence, and entered a 

written order reflecting the clarification. Both the oral pronouncement and the written 

order imposed conditions restricting Jones's contact with or proximity to minors.

While this appeal was pending, the Fourth District released its decision in 

Levandoski v. State, 217 So. 3d 215 (Fla. 4th DCA 2017), disagreeing with the holding 

in Snow. "When a court clearly imposes sex offender probation as a special condition 

of probation, it need not individually specify each item contained within the umbrella of 

sex offender probation conditions." Id. at 219. The supreme court recently resolved the 

conflict in favor of the Fourth District’s position. Levandoski v. State, 43 Fla. L. Weekly 

S258 (Fla. June 7, 2018).

Levandoski pleaded no contest to two charges for which sex offender 

probation is not mandatory. He requested that he be sentenced to a downward 

departure sentence of house arrest with the terms of sex offender probation included 

therein. Id. at S258. The trial court sentenced him to prison followed by sex offender 
- 4 -

probation. Id. Subsequently, Levandoski unsuccessfully moved to strike the conditions 

of sex offender probation on the ground that they were special conditions that were not 

orally pronounced. Id. The supreme court held that Levandoski was on notice of the 

conditions of sex offender probation because his request for such exhibited an 

understanding of said conditions and the trial court's oral pronouncement of the 

sentence implicitly referenced sex offender probation by imposing a condition found 

exclusively within section 948.30. Id. at S259-260.

In our case, Jones entered a negotiated plea to sex offender probation for 

a nonenumerated offense. Under Levandoski, Jones must be deemed to have been on 

notice of the special conditions of sex offender probation and their oral and written 

impositions were effective at his initial sentencing. In light of this, the State's effort to 

have Jones’s sentence clarified to comply with the requirements of Snow proved 

unnecessary; the ensuing oral pronouncement and written order are superfluous. 

Regarding Jones's second argument, the parties' plea agreement 

exempted Jones from sex offender probation conditions that are required when the 

victim was under the age of eighteen. This agreement was incorporated into the oral 

sentence, and it was reflected in the written sentencing documents. "Because probation 

is considered a sentence in Florida, an enhancement or extension of the conditions of 

probation after the conclusion of the sentencing hearing generally constitutes a violation 

of the double jeopardy prohibitions of the United States and Florida constitutions." 

Burkhart v. State, 974 So. 2d 1203, 1204 (Fla. 1st DCA 2008). Here, the trial court 

improperly enhanced Jones's sentence by adding conditions of sex offender probation 

that are required when the victim was under eighteen.
- 5 -

Because the order clarifying Jones's sentence is superfluous generally 

and violates double jeopardy insofar as it purports to impose sex offender probation 

conditions from which Jones was exempted at his initial sentencing, we reverse the 

order in its entirety.

LUCAS, J., and CASE, JAMES, ASSOCIATE SENIOR JUDGE, Concur.