Barlow v. State

• Decision Date: 01 October 1980
• Docket Number: No. 00-239,00-239
• Parties: Kerry BARLOW, Appellant, v. STATE of Florida, Appellee. /T1-116.
• Court: Florida District Court of Appeals

Page 349

388 So.2d 349

Kerry BARLOW, Appellant, v. STATE of Florida, Appellee.

No. 00-239/T1-116.

District Court of Appeal of Florida, Fifth District.

Oct. 1, 1980.

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The defendant, Kerry Barlow, was convicted after jury trial of two counts of battery. He was placed on two years probation. On appeal he challenges the sufficiency of the evidence to support the convictions, as well as a condition of probation requiring restitution as directed by the probation officer. The written order of probation was in error, as conceded by the state, in imposing a single two-year probationary period on appellant for the two separate counts of battery (two victims having been involved in the physical altercation), rather than imposing two consecutive one-year probationary periods in conformity with the oral announcement of the trial court at the time of sentencing.

The evidence at trial indicated that Barlow, who was eighteen, became involved in a fracas with two older men, aged seventy-three and sixty-two respectively, in a park in Ocala. Barlow's father, William Barlow, wielding a "pipe-like instrument," interceded to help him. The victims suffered a broken nose and fractured dentures.

There was evidence which, if believed by the jury, indicated that Kerry Barlow kicked and struck the victims and that he instigated the incident. Although there was contrary evidence submitted by the defendant's own testimony, there was sufficient evidence to sustain the convictions. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976).

The appellant challenges condition No. 9 of the probation order which provides:

You will pay 1/2 of the total restitution to the victims as directed by your Probation Officer.

There was a corresponding requirement in the probation order concerning the co-defendant, appellant's father.

The appellant contends that the trial court must give notice of the proposed restitution and afford an opportunity to a defendant to be heard as to the amount, and that the court cannot delegate its responsibility for determining the amount and schedule of restitution to the probation officer. The state, although conceding that extant authority in Florida supports appellant's substantive contention in regard to notice and delegation of authority, notes that these objections have never been presented to the trial court.

In Fresneda v. State, 347 So.2d 1021 (Fla.1977), the Florida Supreme Court held that a condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime must be predicated by notice to, and the...