JOSE L. MARTINEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A special condition of probation is invalid if it is not reasonably related to the crime of conviction or future criminality.
Appellant was convicted of burglary and grand theft and placed on probation. A special condition required him to leave the U.S. if he was illegally pr…
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THREADGILL, Judge.
The appellant was found guilty at trial of burglary and grand theft and was placed on three years’ probation. Over the appellant’s objection, the trial court imposed a special condition of probation which requires that if the appellant is in the United States illegally he is to leave within ten days of his release from custody and remain outside of the United States for his probationary period. The appellant appeals his sentence arguing that the condition was not relevant to his rehabilitation. We agree and reverse.
In determining whether a condition of probation is reasonably related to rehabilitation, a condition 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.” Biller v. State, 618 So. 2d 734 (Fla.1993) (quoting Rodriguez v. State, 378 So. 2d 7, 9 (Fla.2d DCA 1979)). Where a special condition of probation is challenged on relevancy grounds, it will only be upheld if the record supports at least one of the circumstances outlined in Rodriguez. 618 So. 2d at 735.
Nothing in the instant record indicates that the condition requiring the appellant to leave the country is related to the offense of which he was convicted or to future criminality. And although entering the United States at a time or place other than as designated by immigration officers can constitute a crime, 8 U.S.C. § 1325, the record does not establish that the appellant’s presence in the United States is in itself criminal.
Accordingly, we reverse the order placing appellant on probation and remand with directions that the condition requiring him to leave the United States be deleted.
HALL, A.C.J., and BLUE, J., concur.
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Citator
Cited By
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Aleño Santana Madrigal v. State, 683 So. 2d 1093 (Fla. 4th DCA 1996)…n relevancy grounds will be upheld only if one of these circumstances is supported by the record. Id. at 735. A probation condition similar to that imposed in the instant ease was stricken by the Second District Court of Appeal in Martinez v. State, 627 So. 2d 542 (Fla. 2d DCA 1993), as not meeting the Biller requirements. In the immediate case, there is no real dispute that the challenged condition does not relate to the offenses on which appellant was convicted or to future criminality. Although the trial…
Authorities Cited
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)