TONY RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A condition of probation forbidding alcohol use is invalid if unrelated to the crime, not criminal itself, and not reasonably related to future criminality.
Tony Richardson appealed a probation condition forbidding alcohol use and frequenting alcohol-serving establishments, arguing it was unrelated to his …
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PARKER, Judge.
Tony Richardson appeals condition 12 of the order of probation which forbids the use of alcohol or frequenting places where alcohol is the main source of business. He argues that this condition is unrelated to the crime charged (possession of cannabis with the intent to sell), and it does not accurately reflect the oral pronouncement made by the court. Both of Richardson's arguments have merit and require that the part of condition 12 which restricts the use of alcohol should be struck.
Recently, the supreme court has approved this court’s test as set forth in Rodriguez v. State, 378 So. 2d 7, 9 (Fla. 2d DCA 1979) for determining whether or not a condition of probation is valid. Biller v. State, 618 So. 2d 734 (Fla.1993). In Rodriguez, this court held 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.” Rodriguez, 378 So. 2d at 9. As such, condition 12 imposed upon Richardson cannot be upheld under any part of the test set forth in Rodriguez. The condition is not related to the crime charged; the consumption of alcohol is not illegal; and the use of alcohol is not reasonably related to future criminality. Accordingly, we strike the condition. See Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990).
Additionally, at sentencing while the trial court instructed Richardson not to consume any alcohol, the court did not instruct Richardson that he could not “frequent places where alcohol is the main source of business.” Therefore, because the written order does not accurately reflect the oral pronouncement, we strike that portion of the written order. See Pratt v. State, 601 So. 2d 619 (Fla. 2d DCA 1992).
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Denson Emory Grate v. State, 623 So. 2d 591 (Fla. 5th DCA 1993)…hing in the record indicating the defendant even had a propensity toward alcohol. Therefore, the conditions could not be legally imposed. The Second District Court recently applied the Rodriguez test to facts similar to ours in Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993). The defendant in Richardson was convicted of possession of cannabis with the intent to sell. Just as in the instant case, the trial court required that the defendant refrain from using alcohol or frequenting places where alcohol…
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Fernandez v. State, 677 So. 2d 332 (Fla. 4th DCA 1996)…indicates it would relate to future criminality. A condition of probation restricting the appellant’s use of alcohol could not be legally imposed under the circumstances of this case, Biller v. State, 618 So. 2d 734 (Fla.1993); Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993); therefore, testing for the use of alcohol is not warranted. But see Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA), rev. denied, 593 So. 2d 1052 (Fla.1991). Accordingly, we strike the portion of condition (9) requiring random test…
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Noe Nunez v. State, 633 So. 2d 1146 (Fla. 2d DCA 1994)…indicates it would relate to future criminality. A condition of probation restricting the appellant’s use of alcohol could not be legally imposed under the circumstances of this case, Biller v. State, 618 So. 2d 734 (Fla.1993); Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993); therefore, testing for the use of alcohol is not warranted. But see Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA), rev. denied, 593 So. 2d 1052 (Fla.1991). Accordingly, we strike the portion of condition (9) requiring random test…
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
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Edmunds v. State, 559 So. 2d 415 (Fla. 2d DCA 1990)
- Kendall Douglas Pratt v. State, 601 So. 2d 619 (Fla. 2d DCA 1992)