JAMES STEPHEN BAXTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant waives the right to challenge original probation conditions by not appealing them at their imposition. However, a new condition substantially different from the original may be challenged.
Defendant challenged three probation conditions after his probation was revoked due to a new offense. Two conditions were from his original probation,…
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PER CURIAM.
Defendant challenges three conditions of his probation, which the trial court imposed after the revocation of his original probation. We affirm in part and reverse in part.
Defendant originally pled guilty in three cases to the commission of five lewd and lascivious acts and to the commission of one act of attempted sexual battery. In exchange he received fifteen years probation in each case to run concurrently. Defendant then violated that probation by fondling and rubbing a ten-year-old girl while he was performing community service work. Upon revocation of probation he received a split sentence of prison (for the attempted sexual battery) plus new probation (concurrent for the other offenses) to be served upon release from prison.
Because the first two of the challenged conditions were provisions of defendant’s original probation, defendant should have appealed them at the time of their original imposition instead of now. See King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980) (defendant who accepts benefit of probation waives right to attack that probation, even on grounds of illegality, upon its revocation). Since he did not, he has waived his right to challenge them now.
On the other hand, the third condition was substantially different from those imposed in his original probation. That condition states, “No contact with any children under the age of 21, without permission from the Judge.” Following Sturgeon v. State, 582 So. 2d 746, 747 (Fla. 2d DCA 1991), we direct the trial court on remand to modify the third condition to prohibit contact with persons under the age of eighteen.
Affirmed in part, reversed in part, and remanded.
RYDER, A.C.J., and LEHAN and PARKER, JJ., concur.
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Blair v. State, 805 So. 2d 873 (Fla. 2d DCA 2001)…ce are waived. Novaton v. State, 634 So. 2d 607, 609 (Fla.1994); see also Melvin v. State, 645 So. 2d 448, 449 (Fla.1994). Blair should have appealed the addition of special condition two when it was originally imposed in 1998. See Baxter v. State, 596 So. 2d 460 (Fla. 2d DCA 1991). He did not do so, and in March 1999, Blair accepted the benefit of the continuation of his probation. See id. We also note that prior to pleading guilty to the violation of probation in March 1999, Blair was aware of special con…
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Gearhart v. State, 885 So. 2d 415 (Fla. 5th DCA 2004)…nce are waived. Novaton v. State, 634 So. 2d 607, 609 (Fl.1994); see also Melvin v. State, 645 So. 2d 448, 449 (Fla.1994). Blair should have appealed the addition of special condition two when it was originally imposed in 1998. See Baxter v. State, 596 So. 2d 460 (Fla. 2d DCA 1991). He did not do so, and in March 1999, Blair accepted the benefit of the continuation of his probation. See id. We also note that prior to pleading guilty to the violation of probation in March 1999, Blair was aware of special cond…
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Battles v. State, 919 So. 2d 621 (Fla. 1st DCA 2006)…ealed modification order, improperly extended probation by twelve (12) months, but not beyond the applicable maximum sentence. This appeal is not the proper forum for arguing the merits of the previous modification order. See, e.g., Baxter v. State, 596 So. 2d 460, 460 (Fla. 2d DCA 1991)(“Because the first two of the challenged conditions were provisions of defendant’s original probation, defendant should have appealed them at the time of their original imposition instead of now.”). See generally Hunter v. De…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shearund Duron King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979)
- Sturgeon v. State, 582 So. 2d 746 (Fla. 2d DCA 1991)