SHANE MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed Mitchell's convictions for battery and false imprisonment but reversed in part to strike an improper probation condition and an unauthorized court facility fee.
The trial court properly instructed the jury on lesser included battery offenses and properly assessed restitution for tips and bonuses, but erred in imposing a probation condition delegating substance abuse testing authority to the probation officer and in assessing a court facility fee not yet in effect.
[1] A probation condition that delegates to a probation officer the authority to order substance abuse testing to determine whether treatment is necessary is improper.
[2] A court facility fee imposed under a statute not in effect at the time of the offense must be stricken from the sentence.
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Join FLexlaw to unlock all legal intelligenceShane Mitchell was convicted by jury of four counts of lesser included battery, one count of felony battery, and one count of false imprisonment. The …
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PER CURIAM.
Shane Mitchell appeals the judgment and sentence imposed following the return of the jury verdict finding him guilty of four counts of the lesser included offense of battery, one count of the lesser included offense of felony battery, and one count of false imprisonment. He argues that: (1) the trial court erred in instructing the jury on the four lesser included battery offenses; (2) the trial court erred in assessing restitution for the speculative losses of unearned and undeterminable tips and bonuses; and (3) the trial court erred in denying, in part, his motion to correct a sentencing error. We affirm as to the first two issues.
Regarding the third issue, we agree with Mitchell that the trial court erred in failing to delete Special Condition F of Mitchell’s probation, which delegated to the probation officer the authority to order alcohol and drug testing in order for the probation officer to determine whether any substance abuse treatment was necessary. We also agree that because section 939.185(l)(a), Florida Statutes, was not in effect at the time Mitchell committed his offenses, the amount of $65.00, which was imposed as an additional court facility fee, must be stricken. See Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007). We therefore strike Special Condition F and the $65.00 fee. In all other respects, we af firm the judgment of conviction and sentence imposed on Mitchell.
AFFIRMED in part; REVERSED in part.
PLEUS, C.J., SAWAYA and EVANDER, JJ., concur.
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Citator
Cited By
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Carter v. State, 975 So. 2d 1199 (Fla. 5th DCA 2008)…hat permitting his probation officer to select the appropriate rehabilitative programs he should attend amounts to an improper delegation of the trial court’s authority and that a similar condition was struck down by this Court in Mitchell v. State, 954 So. 2d 1263 (Fla. 5th DCA 2007). In Mitchell, this Court, without citation of authority, held that the trial court erred in including a special condition of probation “which delegated to the probation officer the authority to order alcohol and drug testing in…
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Keidrick T. Holloway v. State, 962 So. 2d 383 (Fla. 5th DCA 2007)…tence for manslaughter in all respects except one. We strike the $65 “Criminal Ordinance Program” fee imposed pursuant to section 939.185, Florida Statutes, because that statute took effect after the instant offense was committed. Mitchell v. State, 954 So. 2d 1263 (Fla. 5th DCA 2007). AFFIRMED; FEE STRICKEN. LAWSON and EYANDER, JJ., concur.…
Authorities Cited
- Griffin v. State, 946 So. 2d 610 (Fla. 2d DCA 2007)