Gardner v. State, 77-2155
| Decision Date | 27 December 1978 |
| Docket Number | No. 77-2155,77-2155 |
| Citation | 365 So.2d 1053 |
| Parties | Edward Rocky GARDNER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant was initially placed on three years' probation following a plea of guilty to the crime of aggravated assault. Defendant was subsequently found to be in violation of probation and sentenced to five years in prison. This appeal questions the validity of the violation of probation. We reverse.
The original order placing defendant on probation required as a condition of probation that he spend six months in the county jail. In addition, the standard conditions of probation were imposed plus certain other special conditions. Most all of the conditions contemplated definite supervision by a probation officer.
Two weeks after the original order the trial court entered an order modifying probation. This order released the defendant from jail and placed him in the custody of his mother. The order stated that probation was to be unsupervised. The order also stated that the defendant had indicated that he wished to return to the State of Missouri and not remain in Florida.
The original order of probation was entered March 15, 1977, and the modification order was entered on March 29, 1977. Defendant was charged within a single affidavit of violating the modified order in not returning to Missouri and with being in possession of a firearm in violation of a condition imposed in the initial order.
After hearing, the trial court found defendant to be in violation of his probation because he had not gone to Missouri and because he was in possession of a .22 caliber rifle.
A condition of probation must be sufficiently definite to advise the defendant of the limits of the restriction. Almond v. State, 350 So.2d 810 (Fla. 4th DCA 1977). A condition which is so vague that the defendant cannot reasonably know what lawful acts he is prohibited from doing is invalid. A person on probation is still entitled to some but not all of the traditional rights of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Here, the condition regarding defendant's return to Missouri was at best vague and ambiguous. There was no definite order that he move his residence in any specific time frame. Further, the transcript of evidence before the trial court shows that the defendant in fact loaded his family into his station wagon and left for Missouri shortly after the order was entered. After he had traveled a short distance, his car sustained a brake failure and he called a friend who came and towed the car home. Defendant then attempted to repair the car but was unsuccessful before being...
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Steiner v. State, 91-1826
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