WALLACE BOUDREAUX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal considered conditions of probation imposed on defendant Boudreaux following his conviction for escape-related and firearm offenses. The court affirmed most probation conditions under the legal standard established in Larson v. State but remanded for modification of the employment-seeking condition.
The court held that probation conditions not objected to at trial may be appealed only if they are illegal—meaning so egregious as to constitute fundamental error. The substance abuse screening and counseling condition and the alcohol abstinence condition are legal and were affirmed. The employment-seeking condition was remanded for modification to properly specify that appellant must actively seek full-time employment during probation.
[1] A condition of probation may be appealed absent a proper objection only if it is illegal, meaning it is so egregious as to be the equivalent of fundamental error.
[2] Conditions of probation aimed at rehabilitation, including counseling, are proper and do not constitute an illegal condition.
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Join FLexlaw to unlock all legal intelligence“a condition of probation may be appealed only if it is illegal, which the supreme court explained to mean that the condition "is so egregious as to be the equivalent of fundamental error."”
Establishes the standard for appealing unobjected probation conditions under Larson
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Join FLexlaw to unlock all legal intelligenceAppellant Boudreaux pleaded no contest to charges of conspiracy to escape, attempted escape, possession of a firearm, and use of a firearm during the …
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PER CURIAM.
We reversed the condition of probation imposed upon appellant that he pay court costs and attorney’s fees, but declined to consider the remaining conditions because appellant had failed to make a contemporaneous objection thereto. Boudreaux v. State, 553 So. 2d 376 (Fla. 1st DCA 1989). The supreme court accepted conflict jurisdiction, and quashed our decision pursuant to its decision in Larson v. State, 572 So. 2d 1368 (Fla.1991). Boudreaux v. State, 572 So. 2d 1372 (Fla.1991). On remand from the supreme court, we have been asked to consider the conditions of probation in light of Larson, supra. We affirm in part and reverse in part.
Besides the imposition of costs, appellant has taken exception to three conditions of his probation which will begin following a prison sentence of five years. A term of imprisonment and probation was ordered after appellant pled no contest to the charges of conspiracy to escape, attempted escape, possession of a firearm and use of a firearm during the commission of a felony. The state dropped the charge of conspiracy to commit first degree murder. The supreme court held in Larson that absent a proper objection, a condition of probation may be appealed only if it is illegal, which the supreme court explained to mean that the condition “is so egregious as to be the equivalent of fundamental error.” 572 So. 2d at 1371. We do not find Condition 12, that appellant undergo substance abuse screening and, if deemed necessary by his probation officer, receive counseling, to be an illegal condition. As the supreme court explained in Larson, “it is entirely proper for a probation officer to supervise conditions aimed at rehabilitation, including counseling.” Id. at 1372.
We note that discretion delegated to appellant’s probation officer is not such as will lead to a punitive result or amounts to a usurpation of an “essentially judicial function.” Id. Likewise, we find Condition 14, that appellant refrain from the use of alcohol, is not an illegal condition.
However, we remand this case for modification of Condition 15 to provide that appellant must actively seek full-time employment during the term of probation.
Accordingly, we AFFIRM in part and REVERSE in part and REMAND for modification as directed herein.
SMITH, ZEHMER and MINER, JJ., concur.
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Evans v. State, 608 So. 2d 90 (Fla. 1st DCA 1992)…811, 812 (Fla. 4th DCA 1992). Since such factors as a down-turn in the economy could prevent the completion of such a condition of probation, a more appropriate course would be to order the probationer to seek gainful employment. Boudreaux v. State, 578 So. 2d 457, 458 (Fla. 1st DCA 1991); Cowan v. State, 527 So. 2d 305 (Fla. 1st DCA 1988); Walls, 596 So. 2d at 812. In a similar vein, it is a settled principle that a trial court may not delegate judicial duties to a probation officer. Larson, 572 So. 2d at 1…
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Walls v. State, 596 So. 2d 811 (Fla. 4th DCA 1992)…from satisfying that element of his probation. As such, the trial court erred in placing the full-time employment requirement on Walls. The court should have instead ordered Walls to maintain or actively seek gainful employment. Boudreaux v. State, 578 So. 2d 457, 458 (Fla. 1st DCA 1991); Cowan v. State, 527 So. 2d 305, 305 (Fla. 1st DCA 1988). This court notes that Walls’s written sentence does not conform to the trial court’s oral pronouncement of judgment and sentence. Walls’s written sentence does not…
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Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994)…ob as you were required to do and you did not make a good faith effort to find full time employment.” A trial court has the authority to order a defendant actively to seek full-time gainful employment during a term of probation. Boudreaux v. State, 578 So. 2d 457, 458 (Fla. 1st DCA 1991); Cowan v. State, 527 So. 2d 305 (Fla. 1st DCA 1988) (remanding for modification of probationary condition to require appellant to “actively seek gainful employment upon release from prison”). In the case sub judice, Officer…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Payne v. State, 553 So. 2d 376 (Fla. 1st DCA 1989)
- Boudreaux v. State, 572 So. 2d 1372 (Fla. 1991)