DAVID DIXON RUSSELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Dixon Russell appealed his conviction for aggravated assault and the conditions of his probation sentence. The court affirmed the conviction and upheld a special probation condition prohibiting Russell from being present at his gun shop, finding both the jury trial waiver valid and the probation condition reasonably related to the crime.
The jury trial waiver was valid and sufficient in all respects. The special probation condition is legal because it is reasonably related to the crime of conviction and is directed at reasonably restraining activity to diminish the inclination to commit similar crimes.
[1] A waiver of the right to a jury trial is sufficient if it is made orally by the defendant pursuant to a court's question and thereafter reduced to writing.
[2] A trial court has broad discretion in determining the conditions of probation, but this discretion is not absolute.
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Join FLexlaw to unlock all legal intelligence“The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is not unbridled. The purpose of probation is primarily to rehabilitate and not primarily to punish.”
Establishes the legal standard for probation conditions—broad but not unlimited discretion, with rehabilitation as the primary purpose.
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Join FLexlaw to unlock all legal intelligenceRussell was convicted of aggravated assault for shooting Paul Comartos in the leg after an altercation at Russell's gun shop. Russell was represented …
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PER CURIAM.
The defendant, David Dixon Russell, was adjudged guilty of committing an aggravated assault upon one Paul Comartos by shooting Comartos in the leg after an altercation in defendant’s gun shop. The trial was before the court without jury. The sentence prescribed for aggravated assault is a term of imprisonment not exceeding five years.1 Defendant was given probation, the terms of which included a special condition: “. . . the Defendant will not be -permitted to be physically on the premises known as, ‘Dave’s 95th Street Gun Shop,’ located at 9507 N.W. 27th Avenue, Miami, Florida.”
On this appeal from the judgment and sentence, the defendant presents two points, urging (1) that he did not expressly and intelligently consent to the waiver of a jury trial and (2) that the special condition of probation is illegal. Each of the points fails to show error on this record.
The defendant was represented at trial by privately-employed counsel, who suggested a waiver of jury to' the court. The determination to proceed without a jury was orally agreed to by the defendant pursuant to a question by the court. Thereafter, the defendant signed a written waiver. The waiver of jury trial was sufficient in all respects. See Jones v. State, 155 Fla. 558, 20 So. 2d 901; Parks v. State, 263 So. 2d 642 (Fla.3d DCA 1972); see also Quartz v. State, 258 So. 2d 283 (Fla.3d DCA 1972); Kinser v. State, 291 So. 2d 80 (Fla.3d DCA 1974).
The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is not unbridled. The purpose of probation is primarily to rehabilitate and not primarily to punish. Kominsky v. State, 330 So. 2d 800 (Fla.1st DCA 1976). See also Roy v. State, 207 So. 2d 52 (Fla.2d DCA 1967). A condition of probation that is reasonably related to the crime for which the offender has been convicted and that is directed to a reasonable restraint of activity in order to diminish the inclination to commit similar crimes is proper and, therefore, is not an abuse of discretion. See the rule in People v. Dominguez, 256 Cal.App.2d 623, 64 Cal.Rptr. 290, 293 (1967); and cf. Barnhill v. U. S., 279 F. 2d 105 (5th Cir. 1960). This record affirmatively shows the reasonable relationship of the condition of probation to the facts of this case.
Affirmed.
. See § 775.082(3)(d), Fla.Stat. (1975); and § 784.021(2), Fla.Stat. (1975).
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Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)…y related to future criminality. People v. Lent, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P. 2d 545 (1975); State v. Livingston, 53 Ohio App.2d 195, 372 [*10] N.E. 2d 1335 (Ct.App.1976); State v. Means, 257 N.W. 2d 595 (S.D.1977). See Russell v. State, 342 So. 2d 96 (Fla.3d DCA 1977). Applying these criteria to the instant case, we hold that the condition prohibiting custody of children has a clear relationship to the crime of child abuse and is therefore valid. The conditions relating to marriage and pregnanc…
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…aw. . See, e.g., Grubbs v. State, 373 So. 2d 905 (Fla.1979). . Dearth v. State, 390 So. 2d 108 (Fla. 4th DCA 1980). .See Almond v. State, 350 So. 2d 810 (Fla. 4th DCA 1977); Coulson v. State, 342 So. 2d 1042 (Fla. 4th DCA 1977); Russell v. State, 342 So. 2d 96, 97 (Fla. 3d DCA 1977); Kominskey v. State, 330 So. 2d 800 (Fla. 1st DCA 1976). .The ejusdem generis rule. . See generally 26 Fla.Jur. Public Officers § 188 (1959); 23 Fla.Jur.2d Evidence and Witness §§ 91, 93 (1980). . See, e.g., Boozer v. State…
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Dumas v. State, 439 So. 2d 246 (Fla. 3d DCA 1983)…ngton v. State, Viggiani v. State, Groomes v. State, 401 So. 2d 1139 (Fla. 3d DCA 1981); Sessums v. State, 404 So. 2d 1074 (Fla. 3d DCA 1981); Durcan v. State, 383 So. 2d 248 (Fla. 3d DCA), rev. denied, 389 So. 2d 1109 (Fla. 1980); Russell v. State, 342 So. 2d 96 (Fla. 3d DCA 1977); Kinser v. State, 291 So. 2d 80 (Fla. 3d DCA), cert. denied, 297 So. 2d 832 (Fla. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975). The previously cited cases rely upon Quartz v. State, 258 So. 2d 283 (Fla.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976)
- Quartz v. State, 258 So. 2d 283 (Fla. 3d DCA 1972)
- ROY v. State, 207 So. 2d 52 (Fla. 2d DCA 1967)
- Raleigh Jones v. State, 155 Fla. 558 (Fla. 1945)
- Kinser v. State, 291 So. 2d 80 (Fla. 3d DCA 1974)
- Barnhill v. United States, 279 F.2d 105 (5th Cir. 1960)
- Parks v. State, 263 So. 2d 642 (Fla. 3d DCA 1972)