CARLTON EVERETT WILKINSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A condition of probation prohibiting an offender from living with a female to whom he is not married or related is invalid if it does not reasonably relate to rehabilitation or future criminality.
Appellant was placed on probation after pleading nolo contendere to carrying a concealed firearm. A condition of probation prohibited him from living …
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FRANK D. UPCHURCH, Jr., Judge.
This is an appeal from an order of the Circuit Court for Orange County withholding adjudication of guilt and placing appellant on probation.
The only question with which we are concerned is whether the trial court erred in prohibiting appellant, as a condition of probation, from living with a female to whom he is not married or related.
We agree that the condition was improper and strike it. The order appealed is otherwise affirmed.
The Second District Court of Appeal in Rodriguez v. State, 378 So. 2d 7, 9 (Fla. 2d DCA 1979), enunciated a test for determining whether a condition of probation is reasonably related to rehabilitation. The court said a condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted;
(2) relates to conduct which is not in itself criminal, and
(3) requires or forbids conduct which is not reasonably related to future criminality.
Here, appellant pled nolo contendere to a charge of carrying a concealed firearm. The condition imposed bears no reasonable relation to the crime of which appellant was convicted.1
Accordingly, we hold the condition prohibiting defendant from living with a female to whom he is not married or related is invalid and strike this condition from the order appealed. The order is otherwise affirmed as modified.
DAUKSCH, C. J., and COBB, J., concur. . See also Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980), holding a condition of probation prohibiting sexual intercourse with one other than appellant’s lawfully married spouse to be an improper condition of probation after conviction for forgery.
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Biller v. State, 618 So. 2d 734 (Fla. 1993)…GRIMES, Justice. We review Biller v. State, 604 So. 2d 16 (Fla. 4th DCA 1992), because of its conflict with Stonebraker v. State, 594 So. 2d 351 (Fla. 2d DCA 1992), Wilkinson v. State, 388 So. 2d 1322 (Fla. 5th DCA 1980), and Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. Biller was convicted of carrying a concealed firearm and carrying a concealed wea…
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…(Fla. 3d DCA 1978); Ingram v. State, 264 So. 2d 109 (Fla. 4th DCA 1972). Appellant also challenges the validity of a condition of probation prohibiting him from living with any female to whom he is not married or related, citing Wilkinson v. State, 388 So. 2d 1322 (Fla. 5th DCA 1980), which, relying on criteria set forth in Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979), held that such a condition of probation was invalid because it bore no reasonable relationship to the crime of carrying a concealed wea…
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Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989)…d at the sentencing hearing. The condition that Appellant not live with a member of the opposite sex has been held to be invalid because it relates to noncriminal conduct. See Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984); Wilkinson v. State, 388 So. 2d 1322 (Fla. 5th DCA 1980). We find that the condition that Appellant not be within three blocks of a “high drug area” as defined by his probation officer is too vague to advise Appellant of the limits of his restrictions and can be easily violated unint…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980)