JODY LOU MCGEORGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A Florida appellate court affirmed a jury's guilty verdict for burglary of a conveyance and the trial court's withholding of adjudication and five-year probation, but modified the probation conditions by striking an unconstitutional warrantless search provision and a requirement that the appellant waive notice before a public defender fee was set, while upholding a requirement to pay court costs.
The trial court properly denied the motion for judgment of acquittal because the evidence was legally sufficient to establish a prima facie case and support the verdict. However, the court erred in imposing probation conditions requiring warrantless consent to searches and waiver of notice before setting public defender fees; these conditions are struck from the probation order. The requirement to pay court costs as a condition of probation is affirmed.
[1] A motion for judgment of acquittal made only at the close of the state's case is waived if not renewed at the close of all the evidence, absent a motion for new trial.
[2] Evidence sufficient to establish a prima facie case at the close of the state's case, if not challenged by a renewed motion for acquittal, will be viewed with all reasona…
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Join FLexlaw to unlock all legal intelligence“This is an appeal from an order withholding adjudication of guilt and placing appellant on probation for five years, after a jury found him guilty of burglary of a conveyance.”
Establishes the nature of the lower court decision being appealed—the imposition of probation with conditions following a guilty verdict.
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Join FLexlaw to unlock all legal intelligenceAppellant was tried by jury and found guilty of burglary of a conveyance. The trial court withheld adjudication of guilt and imposed five-year probati…
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DAUKSCH, Chief Judge.
This is an appeal from an order withholding adjudication of guilt and placing appellant on probation for five years, after a jury found him guilty of burglary of a conveyance. Appellant alleges as error the refusal of the trial court to grant a motion for judgment of acquittal made only at the close of the state’s case. We have examined the evidence and agree with the trial judge who found the evidence sufficient to establish a prima facie case. Because the motion was not renewed at the close of all the evidence and the appellant did not file a motion for new trial, we have resolved all reasonable inferences in favor of the state and find the evidence legally sufficient to support the verdict. Vazquez v. State, 350 So. 2d 1094 (Fla. 3d DCA 1977), cert. denied 360 So. 2d 1250 (Fla.1978); Lynch v. State, 293 So. 2d 44 (Fla.1974); Mancini v. State, 273 So. 2d 371 (Fla.1973). Rule 3.380(b), Fla.R.Crim.P. (1977).
Appellant has alleged as error certain provisions of the order placing him on probation. The first is the requirement that he “shall consent to a search of himself or any vehicle or premises under his control at any time by any law enforcement officer.” This is wrong and that requirement is hereby stricken from the order. Grubbs v. State, 373 So. 2d 905 (Fla.1979); Pace v. State, 373 So. 2d 911 (Fla.1979); Isaacs v. State, 373 So. 2d 911 (Fla.1979). The requirement that this indigent appellant pay his court costs as a condition of probation is affirmed. State v. Byrd, 378 So. 2d 1231 (Fla.1979).
The requirement that the accused appellant had to “waive any notice of a hearing” to set a fee and impose a lien against the accused in order for him to obtain the services of a public defender is also wrong. This is an infringement upon the appellant’s constitutional right to counsel because it requires the abandonment of a statutory right to have notice and be heard before the fee is set and the lien attaches. Sec. 27.56(7), Fla.Stat. (1979); Gryca v. State, 315 So. 2d 221 (Fla. 1st DCA 1975). The provision in the order placing appellant on probation requiring the payment of the public defender fee is stricken without prejudice to set the fee after notice and hearing in compliance with section 27.-56(7), Florida Statutes (1979).
AFFIRMED AS MODIFIED.
ORFINGER and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bull v. State, 548 So. 2d 1103 (Fla. 1989)…PER CURIAM. We review Bull v. State, 507 So. 2d 744 (Fla. 2d DCA 1987), to resolve conflict with McGeorge v. State, 386 So. 2d 29 (Fla. 5th DCA 1980), and Gryca v. State, 315 So. 2d 221 (Fla. 1st DCA 1975). Art. V, § 3(b)(3), Fla. Const. Petitioner was charged with escaping or attempting to escape from Polk Correctional Institution in violation of section 944.40, Florida Stat…1 / 2
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Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981)…ttal at the close of the State’s case, but did not renew the motion at the close of all the evidence or move for a new trial. Therefore, we determine only if the State presented sufficient evidence to establish a prima facie case. McGeorge v. State, 386 So. 2d 29 (Fla. 5th DCA 1980). Resolving all conflicts and inferences in favor of the verdict, we find the evidence legally sufficient. Tibbs v. State, 397 So. 2d 1120 (Fla.1981); McGeorge, at 30; Florida Rule of Criminal Procedure 3.380(b). Appellant first…
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Cliburn v. State, 510 So. 2d 1155 (Fla. 3d DCA 1987)…4th DCA 1984); §§ 27.56, 924.17 Fla.Stat. (1983). Indeed, to impose such costs on an insolvent defendant, as here, would raise grave constitutional concerns. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.891 (1956); McGeorge v. State, 386 So. 2d 29, 30 (Fla. 5th DCA 1980). Third, the assessment of certain nominal costs against the defendant, as detailed above, was legally authorized under Florida law, §§ 27.56(1), 943.25, Fla. Stat.(1983), but were unlawfully imposed in this case because the…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lynch v. State, 293 So. 2d 44 (Fla. 1974)
- Grubbs v. State, 373 So. 2d 905 (Fla. 1979)
- Mancini v. State, 273 So. 2d 371 (Fla. 1973)
- State v. Arsoreda Byrd, 378 So. 2d 1231 (Fla. 1979)
- Gryca v. State, 315 So. 2d 221 (Fla. 1st DCA 1975)
- Vazquez v. State, 350 So. 2d 1094 (Fla. 3d DCA 1977)
- Pace v. State, 373 So. 2d 911 (Fla. 1979)
- Isaacs v. State, 373 So. 2d 911 (Fla. 1979)