THOMAS ALAN BURKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a public defender's lien must be stricken if the defendant is not advised of their right to a hearing, and an employment condition on probation must be modified to require diligent effort rather than guaranteed maintenance.
[1] A public defender's lien may not be imposed without advising the defendant of their right to a hearing to contest the lien.
[2] A condition of probation requiring a defendant to obtain and maintain full-time or part-time employment is improper if economic conditions beyond the defendant's control…
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Join FLexlaw to unlock all legal intelligenceThomas Alan Burke appealed his sentence, specifically challenging conditions of probation requiring payment of a public defender's lien and obtaining …
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DIAMANTIS, Judge.
Thomas Alan Burke appeals his sentence, contending that the trial court erred in ordering, as conditions of probation, that Burke pay a $100 public defender’s lien, and that Burke obtain and maintain full-time/part-time employment. We agree and, thus, strike the public defender’s hen, modify the employment condition, and remand this cause for further proceedings.
The state properly concedes that the record does not show that Burke was advised of his right to a hearing to contest the public defender’s hen as required by Florida Rule of Criminal Procedure 3.720(d)(1). Therefore, the public defender’s hen is stricken without prejudice to the reimposition of the lien upon remand after compliance with the rule. See Fontenont v. State, 681 So. 2d 379 (Fla. 5th DCA 1994); Jones v. State, 623 So. 2d 627 (Fla. 5th DCA 1993); Smith v. State, 622 So. 2d 638 (Fla. 5th DCA 1993). See also Bull v. State, 548 So. 2d 1103 (Fla. 1989).
The state also properly concedes that the trial court erred in requiring that, as a condition of probation, Burke must obtain and maintain full-time/part-time employment. In Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993), we held that the trial court erred in requiring the defendant, as a special condition of probation, to maintain full-time and part-time employment because economic conditions beyond the defendant’s control could prevent him from complying with this condition. See also Johnson v. State, 636 So. 2d 792 (Fla. 5th DCA 1994). Based upon the reasoning set forth in Armstrong and Johnson, we modify this special condition of probation to require Burke to work faithfully at suitable employment insofar as may be possible. See § 948.03(l)(c), Fla.Stat. (Supp. 1992).
Accordingly, we strike the $100 public defender’s hen without prejudice to reimpose it on remand after comphance with rule 3.720(d)(1), and we affirm the probation order’s special condition regarding employment as modified.
As modified, AFFIRMED in part; hen QUASHED; REMANDED.
COBB and GRIFFIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bull v. State, 548 So. 2d 1103 (Fla. 1989)
- Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)
- Jones v. State, 623 So. 2d 627 (Fla. 5th DCA 1993)
- Bruce v. State, 622 So. 2d 638 (Fla. 2d DCA 1993)
- Domena v. State, 622 So. 2d 638 (Fla. 5th DCA 1993)
- Alphonso L. Johnson v. State, 636 So. 2d 792 (Fla. 5th DCA 1994)