Brown v. State, 74--833
| Decision Date | 27 December 1974 |
| Docket Number | No. 74--833,74--833 |
| Citation | 305 So.2d 309 |
| Parties | Jonathan BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Asst. Public Defender, and B. Douglas Hindmarsh, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant was placed upon probation following a criminal offense. His probation was subsequently revoked. Defendant appeals. We affirm.
The probation condition involved was, 'In all respects live honorably, work diligently at a lawful occupation, and support dependents, if any, to the best of defendant's ability, and live within what income is available.'
The violation charged, which lead to revocation, was failing to 'live honorably' for the second time, to-wit: unlawfully breaking and entering a dwelling house with intent to commit petit larceny.
Two appellate points are presented:
I. Whether requiring a probationer to 'in all respects live honorably' is an unconstitutionally vague condition of probation?
We decline to assay its merit. Section 924.06(2), F.S.1973, Appeal by defendant, provides:
'924.06 Appeal by defendant.--
(Emphasis supplied.)
Thus, the above statute clearly limits this appeal to review of proceedings that occurred After the entry of the order of probation. Probation is a matter of grace and when the defendant chose to accept the conditions of his probation he can not now, having violated those conditions, challenge the order. If he had any grievance, he could have either refused probation or appealed the order and its contents. Section 924.06(2) F.S.1973; Hardrick v. State, 293 So.2d 135 (2d D.C.A.Fla.1974).
The second appellate point is:
II. Whether a revocation of probation based solely on hearsay should be vacated?
We have examined the record and, while there is hearsay evidence reflected, there is additional direct, competent evidence sufficient to substantiate the appealed order. For instance, an officer testified that he arrested the defendant at the scene of the burglary and received oral and written consent to search defendant's car. The...
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...that the trial judge considered essential. At one time, appellate courts endeavored to prevent this result, see Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974), but more recently the courts have considered the constitutional rights of a probationer as if he were a law-abiding citizen and ......
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...to challenge one of the conditions of probation after probation has been revoked for a violation of that condition. Brown v. State, 305 So.2d 309, 310 (Fla. 4th DCA 1974); Welsh v. State, 326 So.2d 37, 38 (Fla. 4th DCA 1976) (stating that "it is ... too late to question" a condition of prob......
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...I believe that affirmance is required upon the application of the well-settled rule which is expressed as follows in Brown v. State, 305 So.2d 309, 310 (Fla. 4th DCA 1974): Probation is a matter of grace and when the defendant chose to accept the conditions of his probation he can not now, ......
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