JOHN ARTHUR CARMO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the trial court's order adding a restitution condition to probation imposed 11 months after sentencing, holding that while courts have broad discretion over probation conditions, they lack statutory authority to add new conditions after a probationary period has commenced.
The trial court lacks statutory authority to impose additional terms or conditions of probation after a probationary period has commenced. Once probation begins, new conditions cannot be added unless there has been a violation and the court establishes a new probationary period.
[1] A court may not impose additional terms or conditions of probation after the probationary period has commenced, absent a violation of existing terms.
[2] The addition of a restitution requirement to a probation order, after probation has begun and without the defendant's acceptance at the time of imposition, is statutorily…
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Join FLexlaw to unlock all legal intelligence“No condition requiring restitution had been imposed; thus, there was nothing to rescind or modify. The addition of a condition, after imposition of probation and not accepted by the defendant at the time of being placed on probation, is without statutory authority.”
Establishes the core holding that courts lack authority to add new probation conditions after the probationary period begins.
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Join FLexlaw to unlock all legal intelligenceAppellant pled guilty to burglary pursuant to a plea agreement for a maximum two-year sentence. He was sentenced to two years with the last 18 months …
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MOORE, Judge.
Appellant seeks review of an order modifying the probation on which he was placed as a result of pleading guilty to, and being convicted of, burglary. He argues that the addition, after eleven months from the imposition of probation, of a condition that he make restitution to the victim of the burglary violates the plea agreement and common notions of fair play. We reverse.
Appellant pled guilty to burglary pursuant to an agreement that he would receive a sentence not to exceed two years. Thereafter, he was sentenced to two years with the last eighteen months thereof suspended, during which time he was placed on probation. Eleven months later the court issued an order to show cause why he should not be ordered to make restitution as a condition of probation, and after hearing, so ordered.
It is patently obvious that the plea agreement did not contain anything except a two year maximum term of imprisonment. We therefore find no violation of the agreement. Nevertheless, we must be concerned with Section 948.03(2) Florida Statutes (1977) which provides:
“(2) The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper. The court may rescind or modify at any time of the terms and conditions theretofore imposed by the court upon the probationer." Notably, this section authorizes the court to “rescind or modify at any time . the terms or conditions theretofore imposed . (Emphasis added). No condition requiring restitution had been imposed; thus, there was nothing to rescind or modify. The addition of a condition, after imposition of probation and not accepted by the defendant at the time of being placed on probation, is without statutory authority.
The trial court is vested with broad discretion in determining the conditions of probation. If a probationer is determined to have violated any of the terms or conditions of his probation, and the court desires to restore him to probation after finding such a violation, the court may, at that time, impose additional conditions. This would be considered a new probationary period. We hold only that once a probationary period has commenced, there is no authority for imposing additional terms or conditions.
REVERSED AND REMANDED with directions to strike the added requirement of restitution from the order placing appellant on probation.
LETTS, J., and JAMES C. DAUKSCH, Jr., Associate Judge, concur.
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In the Interest v. McD., 472 So. 2d 891 (Fla. 4th DCA 1985)…PER CURIAM. We reverse and remand with directions that the provision for restitution contained in the amended order of community control be stricken. See Carmo v. State, 378 So. 2d 850 (Fla. 4th DCA 1979). ANSTEAD and WALDEN, JJ., and SMITH, FREDRICKA G., Associate Judge, concur.…
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Donnie Warren v. State, 499 So. 2d 55 (Fla. 4th DCA 1986)…pecial condition was not orally pronounced at the defendant’s sentencing nor was there support in the record for the subsequent addition of this condition on the order of probation. Knapp v. State, 405 So. 2d 786 (Fla. 4th DCA 1981); Carmo v. State, 378 So. 2d 850 (Fla. 4th DCA 1979). We affirm the trial court’s order of revocation based only upon violations of conditions (2) and (3) since the record is clear that the lower court would have revoked defendant’s probation for any violations where the defendan…
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Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982)…ial court to either modify and amend the sentence or, in the alternative, to grant the defendant the option of withdrawing the change in plea and reinstitut-ing the plea of not guilty. See Davis v. State, 308 So. 2d 27 (Fla.1975) and Carmo v. State, 378 So. 2d 850 (Fla. 4th DCA 1979). The record further reflects that the appellant qualifies under the mandatory language of section 958.04(2), Florida Statutes (1979) as a youthful offender under the wording of the statute prior to its amendment. By the use of t…
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