JOHN BERNARD BRODUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Brodus was convicted of marijuana possession and sentenced to probation with twelve conditions. The court affirmed the conviction and sentence but struck probation condition 12, which prohibited defendant from living with an unrelated member of the opposite sex without written permission from the probation officer, finding it invalid under the Rodriguez test for probation conditions.
The probation condition is invalid and must be stricken because it fails to satisfy the Rodriguez criteria: it has no relationship to the crime of conviction, it relates to conduct that is not criminal, and it is not reasonably related to future criminality.
[1] A condition of probation is invalid if it has no relationship to the crime of conviction, relates to conduct that is not itself criminal, and requires or forbids conduct…
[2] A probation condition prohibiting a probationer from living with a member of the opposite sex who is not a relative is invalid when the underlying statute that permitted…
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Join FLexlaw to unlock all legal intelligence“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”
The Rodriguez test establishing the criteria for determining whether a probation condition is valid and constitutional.
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Join FLexlaw to unlock all legal intelligenceBrodus was convicted of possession of marijuana under Florida Statutes section 893.13(1)(3). He was sentenced to probation with twelve conditions, inc…
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LEHAN, Judge.
We affirm defendant’s conviction and probation sentence for possession of marijuana, a violation of section 893.13(1), (3), Florida Statutes (1981), except in the following respect.
One of the conditions of probation, condition 12, was that defendant “must not live with [a] member of [the] opposite sex that is not [a] relative unless written permission from the probation officer [is given].” Tests for the invalidity of a probation condition were stated in Rodriguez v. State, 378 So. 2d 7, 9 (Fla. 2d DCA 1979), as follows:
[T]he constitutional rights of probationers are limited by conditions of probation which are desirable for the purpose of rehabilitation.... In determining whether a condition of probation is reasonably related to rehabilitation, we believe that 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.
We strike the condition of probation because it falls within the foregoing criteria. The reasons why it is within criteria (1) and (3) seem evident.
As to criterion (2), the condition appears to relate to “conduct which is not in itself criminal.” Id. This court previously struck as overbroad a probation condition which prohibited the probationer from living with a member of the opposite sex unless married. Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977). Mays remanded for modification of the condition to allow the probationer to live with a female relative. By permitting the condition to prohibit probationer from living with a member of the opposite sex who is not a relative, Mays may appear to constitute support for the type of condition involved here. However, the fornication statute, section 798.03, Florida Statutes (1975), on which the Mays court relied in permitting the prohibition against living with a nonrelative member of the opposite sex, was declared unconstitutional two years later in Purvis v. State, 377 So. 2d 674 (Fla.1979).1 Also, the condition does not permit a so-called “innocent roommate” situation in which two or more share a house and split the rent. Therefore, the condition of probation in the instant case relates to noncriminal conduct.
Accordingly, the probation condition in this case is invalid under the Rodriguez criteria. We remand for condition 12 to be stricken.
REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.
DANAHY, A.C.J., and SCHOONOVER, J., concur. . Purvis found that section 798.03, Florida Statutes (1977), violated the constitutional equal protection guarantee by creating a gender-based classification which was not “substantially related to the achievement of an important governmental objective.” Id. at 676. The 1977 statute was the same as the 1975 statute on which the Mays court relied.
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Huff v. State, 554 So. 2d 616 (Fla. 2d DCA 1989)…ation officer. Neither of these conditions was announced 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 lim…
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Stephens v. State, 659 So. 2d 1303 (Fla. 1st DCA 1995)…one of the circumstances outlined in Rodriguez.” Biller, 618 So. 2d at 735 (emphasis added). We conclude that the special condition of probation imposed below meets all three Biller criteria and is, therefore, invalid. Biller, id.; Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984). In Brodus, the court struck a condition of probation which provid [*1305] ed that the defendant “must not live with [a] member of [the] opposite sex that is not [a] relative_” 449 So. 2d at 942. The Brodus court found that this p…
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Williams v. State, 556 So. 2d 480 (Fla. 2d DCA 1990)…t of insolvency has recently been held invalid. Bull v. State, 548 So. 2d 1103 (Fla.1989). The state may seek reimposition of costs after proper notice and hearing. We further strike special condition (13) of appellant’s probation, Brodus v. State, 449 So. 2d 941 (Fla. 2d DCA 1984); but affirm special condition (16). The fourth district, in 1977, held the same condition of probation as in special condition (16) in this case not to be unreasonable or unlawful, where the defendant pleaded guilty to charges of…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977)
- Purvis v. State, 377 So. 2d 674 (Fla. 1979)