Arriaga v. State, 94-3407
| Decision Date | 03 January 1996 |
| Docket Number | No. 94-3407,94-3407 |
| Citation | 666 So.2d 949 |
| Parties | 21 Fla. L. Weekly D93 Jose ARRIAGA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee.
We affirm the appellant's conviction, finding no error in either of the issues raised. The state concedes error in the trial court's inclusion of a special condition of probation that appellant may not be considered for early termination of probation. We agree that this condition should be stricken. The court in Baker v. State, 619 So.2d 411 (Fla. 2d DCA 1993), was faced with a similar condition and addressed the improprieties of such a stipulation:
The condition must be stricken because a trial judge is not authorized to divest the Department of Corrections of its authority to recommend early termination of probation. S. 948.04(3), Fla.Stat. (1991). Moreover, a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. S. 948.05, Fla.Stat. (1991).
Section 948.05 provides that a probationer may be brought before the court at any time to be "admonished or commended," and if it is in the best interests of justice and the welfare of society, the probationer may be discharged from further supervision. This provision requires the court to respond to the facts and circumstances that develop during the term of probation. If the probationer has fulfilled his obligations and has been a "model probationer," the interests of justice (not to mention the wise allocation of scarce resources) may require that early termination be considered. To permit the court to declare at the inception of probation that no early termination will ever be allowed defeats the salutary purpose of the statute.
If the special condition is meaningless and merely "precatory" in nature, it should not find its way into the formal judgment and sentence. The credibility of the judicial system is not enhanced when trial judges make hollow threats. A victim present at sentencing may take comfort in the trial judge's declaration that there will be no early termination of probation. These false assurances, once exposed, will surely lead to a lack of respect for the judicial system.
Accordingly, the condition at issue is stricken and this cause remanded for correction of the probation order.
On the sentence form, the trial court wrote the words "no early termination" in the blank space for additional conditions of the probation imposed. The state concedes that it was error for the trial court to impose this special condition, citing Baker v. State, 619 So.2d 411 (Fla. 2d DCA 1993). That case concerned a probation condition providing that the Department of Corrections could not recommend an early termination. The second district held that a trial judge does not have the power to prevent a future court from discharging a probationer; nor may the trial judge deprive the Department of Corrections of its authority under Sec. 948.04(3), Florida Statutes (1991), to recommend remission. In the present case, however, the trial court has simply said "no early termination." He has not sought to tie the hands...
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...v. State, 666 So.2d 191, 192 (Fla. 2d DCA 1995); Baker v. State, 619 So.2d 411, 412 (Fla. 2d DCA 1993); see also Arriaga v. State, 666 So.2d 949, 950 (Fla. 4th DCA 1996). However, a crucial distinguishing factor in the above-cited cases is that they do not involve negotiated pleas. Swedish ......
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