JOSEPH D. MCPIKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph McPike, a licensed physician, appealed his convictions for grand theft and challenged a probation condition prohibiting him from prescribing medicine. The court held that while the condition was improper as unrelated to rehabilitation and public protection, it must be affirmed because McPike failed to contemporaneously object at sentencing.
The probation condition prohibiting appellant from prescribing medicine is improper because it is not reasonably related to rehabilitation or public protection and unrelated to the crime of grand theft. However, the appellate court must affirm because appellant failed to contemporaneously object to the condition in the trial court, and this case does not fall within exceptions requiring remand.
[1] A condition of probation is improper if it is not reasonably related to the defendant's rehabilitation or to the protection of the public.
[2] A condition of probation prohibiting a defendant from prescribing medicine is not reasonably related to the crime of grand theft and does not protect the public when the…
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Join FLexlaw to unlock all legal intelligence“the condition prohibiting appellant from writing medical prescriptions while on probation is improper because it is not reasonably related to appellant's rehabilitation and does not provide a standard of conduct essential to protection of the public”
Establishes the substantive legal standard for evaluating probation conditions and finds the condition fails that test
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Join FLexlaw to unlock all legal intelligenceMcPike, a licensed physician and Medical Director at Polk General Hospital, was convicted of twenty-two counts of grand theft arising from his employm…
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SCHOONOVER, Judge.
Appellant, Joseph D. McPike, appeals from the judgments and sentences entered against him for twenty-two counts of grand theft. We find that the trial court erred in imposing a special condition of probation upon appellant, but affirm because appellant failed to make a contemporaneous objection to the condition at sentencing.
Appellant, a licensed physician, was charged with, and convicted of, twenty-two counts of grand theft. The charges arose out of appellant’s employment as Medical Director at Polk General Hospital and not directly from the practice of medicine. Appellant’s combined sentences consisted of three years in state prison followed by ten years of probation.
The presentence investigation revealed that in 1970 appellant was admitted to a hospital because of an embolism in one of his lungs. While hospitalized he became addicted to demerol that had been administered to him for pain. Appellant was treated for this condition and the record does not reflect any drug abuse since that time. Based upon this information, the court found there existed a suggestion of drug abuse. It then imposed a condition of probation prohibiting appellant from prescribing medicine to others and, unless prescribed by another doctor, from administering medicine to himself. The court also required appellant to make restitution in the amount of $40,199 and to pay costs in the amount of $9461.28. This appeal timely followed.
We find no error in the court’s order requiring appellant to make restitution and to pay costs.
We find, however, that the condition prohibiting appellant from writing medical prescriptions while on probation is improper because it is not reasonably related to appellant’s rehabilitation and does not provide a standard of conduct essential to protection of the public. See Grubbs v. State, 373 So. 2d 905 (Fla.1979); Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979).
The condition has no relationship to the crime of grand theft, and, as long as appellant is licensed to practice and to prescribe medicine, such acts are not in themselves criminal and are not reasonably related to future criminality. See Rodriguez. If appellant’s right to effectively engage in his profession is to be taken away from him while on probation, it should be done by the Board of Medical Examiners pursuant to chapter 458, Florida Statutes (1983).
The statute provides an adequate safeguard for protecting the public through a well-defined procedure for determining whether the appellant should be allowed to prescribe medicine. There is no reason why that procedure should not be utilized in this case. See United States v. Pastore, 537 F. 2d 675 (2nd Cir.1976).
Normally, we would remand this case for correction of the error, but we are precluded from doing so here because appellant failed to make a contemporaneous objection to the condition in the trial court. Young v. State, 438 So. 2d 998 (Fla. 2d DCA 1983).
No objection of record is required where the trial court lacks jurisdiction to impose probation or where another fundamental error occurs, Young, but we do not find that this case fits those excep-' tions. Although the condition impacts upon a fundamental, constitutional right, i.e., the right to earn one’s livelihood by any lawful calling, Booth v. Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623 (1902); Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897), the condition does not abrogate this right and an attack on grounds of overbreadth is not appropriate under the facts of this case. We, therefore, must affirm.
AFFIRMED.
CAMPBELL, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988)…So. 2d 7 (Fla. 2d DCA 1979), Jacobsen’s failure to raise a contemporaneous objection to the imposition of that condition at the hearing prohibits him from raising the challenge now. Burns v. State, 513 So. 2d 165 (Fla. 2d DCA 1987); McPike v. State, 473 So. 2d 291 (Fla. 2d DCA 1985). Jacobsen finally maintains, and we agree, that it is incumbent upon the state to establish that Jacobsen wilfully violated the terms of his probation. See Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986). Under the facts present…
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Williams v. State, 505 So. 2d 478 (Fla. 2d DCA 1987)…ve this error by objection to the condition in the trial court. As such, we are precluded from reviewing the condition unless the trial court (1) lacked jurisdiction to impose probation or (2) where another fundamental error occurs. McPike v. State, 473 So. 2d 291 (Fla. 2d DCA 1985); Young v. State, 438 So. 2d 998 (Fla. 2d DCA 1983). In McPike the defendant, a licensed physician, was convicted of grand theft. A condition of the defendant’s probation prohibited him from writing medical prescriptions while on…
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Hussey v. State, 504 So. 2d 796 (Fla. 2d DCA 1987)…crimes with which he was charged, nor is the carnival business itself criminal activity. This condition of probation, in our view does not meet the test as enumerated in Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979). See also McPike v. State, 473 So. 2d 291 (Fla. 2d DCA 1985). In Rodriguez this court held, inter alia, that a condition of probation 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)…
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
- Allgeyer v. Louisiana, 165 U.S. 578 (U.S. 1897)
- Grubbs v. State, 373 So. 2d 905 (Fla. 1979)
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Booth v. Illinois, 184 U.S. 425 (U.S. 1902)
- United States v. Vito M. Pastore, 537 F.2d 675 (2d Cir. 1976)
- Young v. State, 438 So. 2d 998 (Fla. 2d DCA 1983)