CLYDE MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a probation condition requiring appellant to comply with cohabitation laws, construing the condition as requiring lawful conduct rather than mandating marriage or separation.
A probation condition requiring a probationer to abide by Florida's cohabitation statutes is valid when construed to require lawful conduct generally, rather than specifically mandating marriage or relocation.
[1] A probation condition requiring compliance with cohabitation statutes is valid when construed to mandate lawful conduct generally rather than specifically requiring marri…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Courts have generally invalidated probationary conditions which preclude an unmarried male from living with an unrelated female, or living with a member of the opposite sex unless married, or engaging in extramarital sex.”
The court acknowledged established precedent striking down overly specific cohabitation-related probation conditions while distinguishing the narrower construction applied here.
Appellant, unmarried and residing with the mother of two of his children, was convicted on a nolo plea to carrying a concealed weapon and received one…
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WENTWORTH, Judge.
In this appeal from a conviction upon a nolo plea to a charge of carrying a concealed weapon, appellant challenges a condition of his one year probation which directs him to “legalize your living arrangements within ten days or move.” Although the judge’s oral comments at the sentencing hearing were more broadly phrased,1 we construe the challenged condition as merely requiring that appellant abide by the law and not violate Chapter 798, Florida Statutes.2 As so construed, we affirm the order appealed,
MILLS and BARFIELD, JJ., concur. . At sentencing the trial judge was advised that appellant is unmarried and resides with the mother of two of his children. The judge suggested to appellant that he should either "get married or you find another residence.” Courts have generally invalidated probationary conditions which preclude an unmarried male from living with an unrelated female, or living with a member of the opposite sex unless married, or engaging in extramarital sex. See e.g., Wilkinson v. State, 388 So. 2d 1322 (Fla. 5th DCA 1980); Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980); Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977). Requiring a probationer to marry the mother of his child has also been disapproved. See Michalow v. State, 362 So. 2d 456 (Fla. 4th DCA 1978).
. Section 798.01 prohibits living "in an open state of adultery." Section 798.02 prohibits a man and woman not married to each other from "lewdly and lasciviously” associating and cohabiting together.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stephens v. State, 659 So. 2d 1303 (Fla. 1st DCA 1995)…n addition, as worded, the challenged condition cannot be viewed as simply a requirement that appellant is to abide by the law,1 because it also prohibits the so-called “innocent roommate” situation discussed in Brodus. Id. Compare, Miller v. State, 520 So. 2d 80 (Fla. 1st DCA 1988). Accordingly, the special condition imposed below as the tenth condition of probation is invalid under Biller. We REVERSE and REMAND with the instruction that the order of probation be amended in accordance with this opinion. M…
Authorities Cited
- Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977)
- Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980)
- Carlton Everett Wilkinson, Jr. v. State, 388 So. 2d 1322 (Fla. 5th DCA 1980)
- Michalow v. State, 362 So. 2d 456 (Fla. 4th DCA 1978)