DAVID RICHARD GALLAGHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot attack the conditions of probation after a violation has been charged and the revocation process has begun.
Appellant's probation was revoked following a plea to vehicular homicide. He appealed the revocation, arguing the probation conditions were vague and …
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ORFINGER, Chief Judge.
The trial court revoked appellant’s probation which had been imposed following a plea of nolo contendere to a charge of vehicular homicide. He appeals. We affirm.
Appellant attacks the revocation order by arguing that two of the conditions of probation originally imposed are vague, arbitrary, indefinite, overbroad and not reasonably related to the offense for which he was placed on probation. But, this is not an appeal from the original order of probation. The attack on the conditions comes only after a violation is charged, some twenty months later, and such attack is too late. We reiterate what we said in Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982).
“At sentencing, the trial court should clearly delineate all terms upon which he deems it necessary to condition probation and the defendant should clearly state of record his objections and refusal to accept conditions of probation, failing which he should be deemed to have accepted such conditions. In the event the trial court imposes such conditions upon a defendant over the defendant’s clear objection, the defendant must appeal from the original probation order rather than attacking the imposition of a condition after its breach.” (emphasis added).
Id. at 1366. See also, Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978); Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974).
Appellant’s arguments on the sufficiency of the allegations of violation and on the sufficiency of the evidence to sustain the revocation order are without merit. The order revoking probation is
AFFIRMED.
FRANK D. UPCHURCH, J., and COBB, JJ., concur.
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Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999)…ndant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”); Gallagher v. State, 421 So. 2d 581, 582 (Fla. 5th DCA 1982) (quoting Bentley v. State, 411 So. 2d 1361, 1366 (Fla. 5th DCA 1982)) (a defendant “must appeal from the original probation order,, rather than attacking the imposition of a condition after its breach”); § 924.06(2), Fla. St…
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West v. State, 790 So. 2d 513 (Fla. 5th DCA 2001)…ven. The order denying relief is reversed, the probationary sentence is vacated, and the trial court is ordered to discharge West as to the instant offenses. REVERSED and REMANDED. PETERSON and ORFINGER, R. B., JJ., concur. . Gallagher v. State, 421 So. 2d 581 (Fla. 5th DCA 1982); Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999); Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974).…
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State v. Thurman, 791 So. 2d 1228 (Fla. 5th DCA 2001)…dant convicted of an attempted lewd act. Thurman agreed to imposition of these conditions and also waived any objection by waiting until after he had violated one of the conditions to challenge the validity of the conditions. See Gallagher v. State, 421 So. 2d 581 (Fla. 5th DCA 1982); Schoeller v. State, 791 So. 2d 1128 (Fla. 4th DCA 2000); Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999). It was error to dismiss the probation violation proceeding. REVERSED and REMANDED. SAWAYA and PALMER, JJ., concur.…
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
- Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)
- Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974)
- Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)