WILLIAM N. BARLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the order of probation must be corrected to reflect the oral pronouncement of two consecutive one-year terms, but affirmed the restitution condition.
[1] A court order for probation must accurately reflect the court's oral pronouncement regarding the duration and terms of probation.
[2] A defendant must raise objections to a sentence or its conditions in the trial court before appealing the issue.
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Join FLexlaw to unlock all legal intelligenceAppellant was ordered to serve two years probation and make restitution. He appealed the probation term structure and the restitution amount.…
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FRANK D. UPCHURCH, Jr., Judge.
Appellant appeals from an order withholding adjudication of guilt, which among other provisions, required him to serve two years probation and to make restitution to the victims of his assault.
Appellant first contends thjit the order sentencing him to two years probation was incorrect because the court had announced that the probation would be comprised of two consecutive one year terms. The state concedes that appellant’s position is correct. We therefore remand for correction of the order of probation. See McClure v. State, 371 So. 2d 196 (Fla. 2d DCA 1979).
Appellant also contends that condition nine of the order requiring him to pay one-half of the total restitution to the victims was incorrect. We disagree and affirm.
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 the victim of his crime must be predicated by notice and the opportunity to be heard so that the defendant may challenge the amount, presumably in regard to reasonableness as well as the causal relationship to his offense. The court also noted that the section providing for the terms and conditions of probation requires that the amount of restitution 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). Objections to trial court sentences such as appellant raises here should be raised first 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).
We remand to the trial court for correction of the order to conform to the oral announcement of the court that appellant would be required to serve two consecutive one year probationary terms.
AFFIRMED in part; REVERSED and REMANDED in part.
DAUKSCH, C. J., and ORFINGER J., concur.
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…n between a condition of probation and the proper objective 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 att…
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Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)…gs 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 condition of probation should first be presented to the trial court. Dillow v. State, 391 So. 2d 752 (Fla. 5th DCA 1980), cited Barlow, 388 So. 2d 349 (Fla. 5th…
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Myers v. State, 426 So. 2d 986 (Fla. 1st DCA 1983)…otion to strike or correct the alleged illegal conditions of probation. See Fresneda v. State, 347 So. 2d 1021 (Fla.1977); Bodden v. State, 411 So. 2d 1391 (Fla. 1st DCA 1982); and Section 948.03(3) Florida Statutes (1981). See also Barlow v. State, 390 So. 2d 165 (Fla. 5th DCA 1980), and Pope v. State, 368 So. 2d 676 (Fla. 1st DCA 1979). AFFIRMED. THOMPSON, J., concurs. LARRY G. SMITH, J., dissents with opinion. . The state concedes that appellant had a legitimate expectation of privacy as a resident of…
Authorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- 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)