ROBERT M. DEVINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Devine appeals the conditions of probation imposed after violating his original probation by driving under the influence. The appellate court affirms the probation conditions, holding that substance abuse-related conditions are reasonably related to preventing future criminality even if not directly related to the original offense.
The court affirmed all terms of probation. The court held that while substance abuse conditions may not relate to the original offense, they are reasonably related to preventing future criminality, and Devine forfeited the right to challenge them on appeal by failing to object at the time of sentencing.
[1] A defendant must preserve the issue of probation conditions by objecting at the time they are imposed to contest them on appeal, unless the conditions are illegal or so e…
[2] Conditions of probation limiting the consumption of alcohol or requiring substance abuse screening are not appealable in the absence of a contemporaneous objection.
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Join FLexlaw to unlock all legal intelligence“In order to contest conditions of probation on appeal, a defendant must preserve the issue by objecting at the time the conditions are imposed unless the conditions are illegal or so egregious as to be the equivalent of fundamental error.”
Establishes the procedural requirement that Devine failed to meet by not objecting contemporaneously
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Join FLexlaw to unlock all legal intelligenceDevine was placed on probation in 1992 for dealing in stolen property. In 1993, he violated probation by driving under the influence of alcohol. At th…
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PER CURIAM.
Robert M. Devine was placed on probation for dealing in stolen property in 1992. In 1993 he violated the terms of that probation by driving under the influence of alcohol.
When the trial court conducted the hearing for the violation of probation, the DUI proceedings had been completed in another court. The trial court revoked probation, continued to withhold adjudication on the original charge of dealing, and imposed a new three-year period of probation with the special conditions that 90 days be served in jail and that he undergo substance abuse offender supervision. Devine was required to abstain from the consumption of intoxicants and from visiting establishments whose primary purpose is the sale or consumption of intoxicants, and submit to random urinalysis.
Devine argues for the first time on appeal that the conditions of probation that relate to substance abuse should be deleted since they do not relate to the original offense of dealing in stolen property. In order to contest conditions of probation on appeal, a defendant must preserve the issue by objecting at the time the conditions are imposed unless the conditions are illegal or so egregious as to be the equivalent of fundamental error. Larson v. State, 572 So. 2d 1368, 1370-71 (Fla.1991); Bayer v. State, 597 So. 2d 870, 872 (Fla. 5th DCA 1992). Conditions limiting the consumption of alcohol or requiring substance abuse screening are not the type of conditions which may be appealed in the absence of a contemporaneous objection. See Boudreaux v. State, 578 So. 2d 457 (Fla. 1st DCA 1991). Because Devine failed to timely object to the conditions, we affirm the terms imposed.
We also believe that, while the substance abuse conditions may not be related to the dealing in stolen property charge for which the original term of probation was imposed, the imposition of those conditions is reasonably related to preventing future criminality. Biller v. State, 618 So. 2d 734 (Fla.1993). The violation involved substance abuse and rehabilitation may be more likely if Devine is disciplined to avoid intoxicants. Devine was shown leniency by the trial court when it again -withheld adjudication and did not sentence him to the department of corrections as was permitted for the violation of probation. It would be totally unreasonable to require the court to ignore the reason for the violation of the probation originally imposed. The only other alternative the court had to deter Devine from substance abuse was incarceration. Instead, the trial court exhibited some optimism that Devine could be rehabilitated and successfully complete probation.
We affirm the sentence including all of the terms of probation.
SENTENCE AFFIRMED.
PETERSON, DIAMANTIS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holmes v. State, 658 So. 2d 1185 (Fla. 4th DCA 1995)…al.”). The contemporaneous objection rule applies to conditions of probation unless the conditions are so egregious as to be the equivalent of fundamental error or are illegal. Larson v. State, 572 So. 2d 1368, 1370-71 (Fla.1991); Devine v. State, 636 So. 2d 179 (Fla. 5th DCA 1994); Watson v. State, 641 So. 2d 432 (Fla. 5th DCA 1994); Sweet v. State, 644 So. 2d 176 (Fla. 5th DCA 1994). The prosecution costs and public defender fees imposed as conditions of probation in this case are neither illegal nor so e…
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McCLENDON v. State, 659 So. 2d 718 (Fla. 5th DCA 1995)…that McClendon failed to make it at his sentencing hearing. See Bledsoe v. State, 657 So. 2d 1235 (Fla. 5th DCA 1995); Watson v. State, 641 So. 2d 432 (Fla. 5th DCA [*719] 1994); Grasso v. State, 639 So. 2d 152 (Fla. 5th DCA 1994); Devine v. State, 636 So. 2d 179 (Fla. 5th DCA 1994). Nor do we see that the condition relating to alcohol announced at the sentencing hearing is materially different than the written one in the order of probation. At the sentencing hearing, the following discussion took place bet…
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Steward v. State, 677 So. 2d 1369 (Fla. 4th DCA 1996)…the conditions are so egregious as to be the equivalent of fundamental error or are illegal.” Id. at 1186. In the instant case, the conditions complained of are neither illegal nor does their imposition constitute fundamental error. Devine v. State, 636 So. 2d 179 (Fla. 5th DCA 1994). STONE, SHAHOOD, JJ., and RAMIREZ, JUAN, Jr., Associate Judge, concur. . We also note that nothing in the record supports the condition as being related to the crimes for which Appellant pled no contest, nor does the record ind…
Previewing 3 of 4 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)
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992)
- Boudreaux v. State, 578 So. 2d 457 (Fla. 1st DCA 1991)