RAY HUSSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ray Hussey appeals the conditions of his probation and community control, specifically challenging a prohibition on carnival work and a restitution order. The court reversed the carnival work prohibition as unrelated to rehabilitation, but affirmed the restitution order.
The court held that the prohibition on carnival work violates section 948.03(1), Florida Statutes, because it is not reasonably related to the appellant's rehabilitation, bears no relationship to the crimes charged, and involves lawful conduct. The restitution order was affirmed because the appellant failed to object below.
[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 trial court may not impose a condition of probation that prohibits an offender from engaging in their sole livelihood if that livelihood is unrelated to the offense and…
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Join FLexlaw to unlock all legal intelligence“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) requires or forbids conduct which is not reasonably related to future criminality.”
The Rodriguez test establishing the three-part validity standard for probation conditions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant pleaded nolo contendere to five charges: two possession of machine gun offenses, one delivery of cocaine offense, and two carrying concealed…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant appeals the conditions of probation and community control and the order of restitution.
Appellant was charged in five separate informations with two offenses of possession of a machine gun, one offense of delivery of cocaine and two offenses of carrying a concealed firearm. He pled nolo conten-dere to all five charges, was adjudicated guilty of each offense and sentenced within the guidelines recoipmended range of two years’ community control for delivery of cocaine to run concurrently with concurrent five-year terms of probation in the remaining cases.
In addition, as conditions of probation the court ordered appellant to refrain from engaging in carnival work and ordered him to pay restitution in the amount of $3,662.44 to the Florida Department of Law Enforcement (FDLE) for the costs of investigating appellant’s criminal activities.
Appellant raises three points on appeal, one of which we will discuss.
First, appellant argues that the trial court’s order prohibiting him from work in the carnival business as a condition of community control and probation is not related to his rehabilitation and is therefore contrary to section 948.03(1), Florida Statutes (1985). We agree. We do not believe that restraining appellant from participating in the carnival business which has been his sole livelihood for a considerable number of years can be considered to be reasonably related to the rehabilitation of appellant. In addition to being in the carnival business as stated, he has no prior criminal record. Moreover, as appellant points out, carnival work is not related to the 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) requires or forbids conduct which is not reasonably related to future criminality.
378 So. 2d at 9.
We have considered the state’s argument that because a carnival travels from place to place it is incompatible with the concept of community control. Once again, we cannot agree because it is well known that probationers upon request and for good cause shown can have their case transferred elsewhere. We find the state’s position to be without merit under the factual circumstances of this case. Accordingly, we reverse the court’s order prohibiting appellant from engaging in the carnival business.
Appellant failed to object below to the order of restitution. Consequently, we do not reach the issues related to restitution. See Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987).
We remand with instruction to strike the condition of probation prohibiting appellant from working in the carnival business. The order of restitution is affirmed.
DANAHY, C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Emmet Richard Gemme v. State, 508 So. 2d 533 (Fla. 2d DCA 1987)…g restitution. However, defendant did not object to restitution and, therefore, failed to preserve that issue for appeal. See Williams v. State, 507 So. 2d 1171 (Fla. 2d DCA 1987); Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987); Hussey v. State, 504 So. 2d 796 (Fla. 2d DCA 1987); Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987). Defendant next contends that the trial court erred in imposing a fine. We disagree. A fine was permitted under section 77…
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Pulecio v. State, 160 So. 3d 556 (Fla. 2d DCA 2015)…State contends" that the special condition is justified because the State has had difficulty monitoring Pulecio in the past. However, such difficulties are not a factor to be considered under Rodriguez. See 378 So. 2d at 9; see also Hussey v. State, 504 So. 2d 796, 797 (Fla. 2d DCA 1987) (holding special condition prohibiting probationer from engaging in carnival work invalid where State argued that the transient nature of carnival work was incompatible with the concept of community control). Next, the State…
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Wilson v. State, 522 So. 2d 115 (Fla. 2d DCA 1988)…uirements of Jenkins v. State, 444 So. 2d 947 (Fla.1984). Appellant’s failure to object to restitution when orally pronounced by the trial court precludes our review of that issue. Gemme v. State, 508 So. 2d 533 (Fla. 2d DCA 1987); Hussey v. State, 504 So. 2d 796 (Fla. 2d DCA 1987). We affirm the conviction and the order of restitution. We reverse and strike the imposition of costs and remand for correction of the written judgment accordingly. Appellant need not be present for the corrections. Affirmed in…
Authorities Cited
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987)
- McPIKE v. State, 473 So. 2d 291 (Fla. 2d DCA 1985)
- Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987)