KERRY BARLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kerry Barlow appeals his conviction for two counts of battery after a jury trial, challenging both the sufficiency of evidence and a probation condition requiring restitution as directed by a probation officer. The appellate court affirms the conviction but modifies the probation sentence to reflect two consecutive one-year terms rather than a single two-year term, and permits future post-conviction relief regarding the restitution condition.
The court affirms the convictions as sufficiently supported by the evidence. The court does not reach the restitution issue on appeal because appellant failed to raise objections before the trial court, but permits future post-conviction relief on that issue. The court modifies the probation sentence from a single two-year term to two consecutive one-year probationary periods as the trial court orally pronounced.
[1] Sufficient evidence to sustain convictions exists if, when believed by the jury, it indicates the defendant committed the offense, even if contrary evidence was presented…
[2] A condition of probation requiring restitution must be preceded by notice to the defendant and an opportunity to be heard regarding the amount.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although there was contrary evidence submitted by the defendant's own testimony, there was sufficient evidence to sustain the convictions.”
Establishes that despite the defendant's contradictory testimony, the jury verdict was supported by sufficient evidence
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Join FLexlaw to unlock all legal intelligenceEighteen-year-old Kerry Barlow became involved in an altercation with two older men (ages 73 and 62) in an Ocala park. Barlow's father intervened with…
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COBB, Judge.
The defendant, Kerry Barlow, was convicted after jury trial of two counts of battery. He was placed on two years probation. On appeal he challenges the sufficiency of the evidence to support the convictions, as well as a condition of probation requiring restitution as directed by the probation officer. The written order of probation was in error, as conceded by the state, in imposing a single two-year probationary period on appellant for the two separate counts of battery (two victims having been involved in the physical altercation), rather than imposing two consecutive one-year probationary periods in conformity with the oral announcement of the trial court at the time of sentencing.
The evidence at trial indicated that Barlow, who was eighteen, became involved in a fracas with two older men, aged seventy-three and sixty-two respectively, in a park in Ocala. Barlow’s father, William Barlow, wielding a “pipe-like instrument,” interceded to help him. The victims suffered a broken nose and fractured dentures.
There was evidence which, if believed by the jury, indicated that Kerry Barlow kicked and struck the victims and that he instigated the incident. Although there was contrary evidence submitted by the defendant’s own testimony, there was sufficient evidence to sustain the convictions. Garmise v. State, 311 So. 2d 747 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976).
The appellant challenges condition No. 9 of the probation order which provides:
You will pay lh of the total restitution to the victims as directed by your Probation Officer. There was a corresponding requirement in the probation order concerning the co-defendant, appellant’s father. The appellant contends that the trial court must give notice of the proposed restitution and afford an opportunity to a defendant to be heard as to the amount, and that the court cannot delegate its responsibility for determining the amount and schedule of restitution to the probation officer. The state, although conceding that extant authority in Florida supports appellant’s substantive contention in regard to notice and delegation of authority, notes that these objections have never been presented to the trial court.
In Fresneda v. State, 347 So. 2d 1021 (Fla. 1977), the Florida Supreme Court held that a condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime must be predicated by notice to, and the opportunity to be heard by, the defendant so that he may challenge the amount, presumably in regard to reasonableness as well as causal relationship to his offense. The court also noted that section 948.03(l)(g), Florida Statutes, requires the “amount to be determined by the court.”
In Fresneda, however, there was a motion directed to the trial court to correct an illegal sentence. That was not done in the instant case. See Pope v. State, 368 So. 2d 676 (Fla. 1st DCA 1979). We believe that objections to trial court sentences, such as appellant raises here, first should be raised before the trial court. See Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980) and Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980).
The state concedes that the order of probation should be modified to conform to the oral ruling of the trial court at sentencing which placed appellant on two consecutive one-year probationary periods. See McClure v. State, 371 So. 2d 196 (Fla. 2d DCA 1979).
Accordingly, the judgment and sentence of the trial court are affirmed, with the exception that the incorrect single two-year probationary sentence is amended to the appropriate two one-year sentences. This action is without prejudice to appropriate post-conviction relief which may be sought by appellant in the trial court in regard to the issue of restitution.
AFFIRMED as modified.
DAUKSCH, C. J., and SHARP, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…ective sought to be achieved by probation, which presumption the probationer should have the burden to overcome in a proceeding instituted for that purpose in the trial court. See Barlow v. State, 390 So. 2d 165 (Fla. 5th DCA 1980); Barlow v. State, 388 So. 2d 349 (Fla. 5th DCA 1980); Singleton v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980). Any appeal attacking the validity of a specific condition of probat…
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Gaskins v. State, 415 So. 2d 132 (Fla. 5th DCA 1982)…the time of sentence or by way of an appropriate post-trial motion pursuant to Florida Rule of Criminal Procedure 3.800. Objections to trial court sentences, as we previously have held, first should be raised before the trial court. Barlow v. State, 388 So. 2d 349 (Fla. 5th DCA 1980); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA), review denied, 392 So. 2d 1375 (Fla.1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA), approved, 394 So. 2d 407 (Fla.1980). Accordingly, the judgment below is AFFIRMED. ORFING…
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Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)…ate, 386 So. 2d 1314 (Fla. 5th DCA 1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084, Fla.Stat.), citing Smith, En-gel, and Noble. Barlow v. State, 388 So. 2d 349 (Fla. 5th DCA 1980), applied the COR to a sentencing error (improperly imposed condition of probation), citing Jones and Smith. Barlow v. State, 390 So. 2d 165 (Fla. 5th DCA 1980), cited Smith and -Jones, and held that an objection to an improper c…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- Garmise v. State, 311 So. 2d 747 (Fla. 3d DCA 1975)
- Ne. Marine Terminal Co., Inc. v. Caputo, 429 U.S. 998 (U.S. 1976)
- Gaddy v. Michael, 429 U.S. 998 (U.S. 1976)
- Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980)
- Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980)
- McCLURE v. State, 371 So. 2d 196 (Fla. 2d DCA 1979)
- Will Otis Pope v. State, 368 So. 2d 676 (Fla. 1st DCA 1979)