Matthews v. State

Citation736 So.2d 72
Decision Date09 June 1999
Docket NumberNo. 97-4138.,97-4138.
PartiesRosemarie U. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Richard L. Jorandby, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Barbra Amron Weisberg, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

PER CURIAM.

This appeal is from an order revoking probation. Defendant's principal issues concern (1) the legality of the condition for which a violation was charged, (2) the sufficiency of the evidence to prove a willful and material violation, and (3) the jurisdiction of the court to conduct a revocation hearing when the alleged violation occurred prior to entry of a written order of probation. We affirm for the reasons discussed below. In August 1994, defendant was charged with one count of sexual battery on a person less than 12 years of age under section 794.011(2), Florida Statutes (1994). She pled no contest to one count of child abuse. Adjudication was withheld and she was placed on five years probation, with the special condition that she receive a psychological evaluation and complete "any recommended treatment." Thereafter, she was charged with violation of the special condition. At the revocation hearing on January 30, 1997, the court accepted a written negotiated plea agreement which the court required the prosecutor to state on the record. The essential terms were that defendant would plead guilty to the violation, her probation would be revoked, she would be adjudicated guilty of child abuse, and she would be sentenced to a term in the county jail to be followed by thirty months probation with special conditions, one of which is relevant here:

"She is not to be in the presence of any children under the age of 16, unless she is supervised by an adult who is aware that the defendant is on probation for child abuse; David Richardson may not be a supervising adult."

The trial court stated that it was accepting defendant's plea and sentencing her in accordance with "the terms of the written plea agreement." The court did not, however, enter a written probation order at that time.

In May 1997, an affidavit of violation of probation was filed that alleged defendant violated her probation "by having contact with children under the age of 16 years without an adult who is aware [that defendant] is on probation for child abuse." On June 4, 1997, the trial court entered a written probation order, nunc pro tunc to January 30, 1997, that contained the condition that defendant have "NO CONTACT WITH CHILDREN UNDER SIXTEEN (16) YEARS OF AGE UNLESS SUPERVISED BY AN ADULT WHO IS AWARE THAT DEFENDANT IS ON PROBATION FOR CHILD ABUSE." An amended affidavit of violation of probation was filed on June 6, 1997.

At the revocation hearing from which this appeal arises, defendant's probation officer testified:

A. May 9th, I did go to [Defendant's] house to do a residence check. As I was proceeding into a long drive, about a quarter of a mile to three eighths mile long with five cottages, I saw two children riding a bike towards [Defendant's] cottage. I waited approximately two minutes, I proceeded in my vehicle down to the cottage area where I observed two minor children ages eight, nine approximately, eleven and twelve, female children at that residence in the front yard.
I went up to the residence. [Defendant] was sitting in the cottage with the front door open and the window open, openly communicating with the children and with David Richardson who was in the yard.
Q. How far away were the kids from [Defendant]?
A. They were, again, about eight feet away at the time I arrived. At that point I told the children they needed to leave, there was no supervision there for them.
Their mother had already been told, instructed, they were not to be alone with [Defendant]. There was some altercation or verbal exchange at that point, one of the children actually then entered the cottage, sat down next to [Defendant].

Susan LaFehr Hession, a clinical director for a mental health clinic, also testified, over a relevancy objection by defendant's counsel, that in her "clinical opinion, that of my staff, she was obsessed with children" and that defendant was especially predatory. Defendant also testified at the hearing that the children had been in her yard for about "an hour" before her probation officer arrived and she admitted to talking to them through the window. At the close of the hearing, the trial court stated:

THE COURT: I have known Ms. Hession many years. I have high respect for her expert opinion. When she tells me someone is especially predatory, that gets my attention, when also, I am told how this Defendant has continually manipulated and tried to get around that provision. I have no trouble in finding that she said that.
It satisfies the conscience of the court that she willfully violated [the "no-contact" condition] of her probation.

The trial court subsequently entered an order revoking defendant's probation and sentencing her to 4½ years in prison.

Defendant's first argument is that the "no contact" provision of her probation was impermissibly broad because the possibility of an unintentional violation existed. The condition defendant is challenging provides that she should have "no contact with children under sixteen (16) years of age unless supervised by an adult who is aware that the defendant is on probation for child abuse." A number of courts, on direct appeal from an order of probation, have found similar conditions impermissibly broad because they subject defendants to the possibility of an unintentional violation. Oliver v. State, 672 So.2d 105 (Fla. 4th DCA 1996) (condition that explicitly prohibited a defendant from having "contact with minor children" was impermissibly broad); Lambert v. State, 635 So.2d 93, 93-94 (Fla. 4th DCA 1994) (condition which provided the defendant "have no contact with children under age 10" was too broad); Swatzell v. State, 691 So.2d 594, 595 (Fla. 3d DCA 1997) (condition which provided "defendant have no contact with anyone under 18 years of age unless supervised by someone over the age of 25" was impermissibly broad); Rowles v. State, 682 So.2d 1184, 1184-1185 (Fla. 5th DCA 1996) (condition which provided the defendant "have no contact with a female child under the age of sixteen years, unless that child's parent or legal guardian is present" was impermissibly broad).1

Defendant took no appeal from the original order of probation, accepting the condition of probation. Now, for the first time, defendant is challenging that condition in this appeal from an order revoking her probation. This court has held that a probationer, who has accepted the conditions of his or her probation, is not permitted 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 probation after probation has been revoked); see also Gaskins v. State, 607 So.2d 475, 476 (Fla. 1st DCA 1992),

overruled on other grounds, State v. Powell, 703 So.2d 444 (Fla.1997) ("[E]xisting case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation."); Gallagher v. State, 421 So.2d 581, 582 (Fla. 5th DCA 1982) (quoting Bentley v. State, 411 So.2d 1361, 1366 (Fla. 5th DCA 1982)) (a defendant "must appeal from the original probation order, rather than attacking the imposition of a condition after its breach"); § 924.06(2), Fla. Stat. (1997).

In Brown, the defendant was placed on probation following a criminal offense. One of his conditions of probation required him to "live honorably." 305 So.2d at 309. His probation was subsequently revoked based on this condition. The defendant challenged the condition as unconstitutionally vague. This court declined to reach the merits relying on section 924.06(2), Florida Statutes (1973), which stated, in part, an "appeal of an order revoking probation may review only proceedings after the order of probation."2 Based on the statute, this court concluded:

Thus, [section 924.06(2)] 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).3

Id. at 310.

In a more recent case, Mathis v. State, 683 So.2d 634 (Fla. 4th DCA 1996), this court, without addressing the foregoing issue, considered the validity of a condition of probation on an appeal from an order revoking probation. In Mathis, the defendant was on two years probation with the special condition that he "work diligently at a lawful occupation." Id. at 635. The trial court later revoked the defendant's probation based, in part, on a violation of that condition. The defendant appealed the order revoking his probation arguing that the condition was invalid. This court agreed with the defendant, concluding the condition was "invalid" because it did not take into consideration the possibility that the defendant would not be able to obtain employment because of economic conditions, and relying on Vezina v. State, 644 So.2d 602 (Fla. 1st DCA 1994), held that revocation based on this condition was improper because "[a]n invalid condition of probation may not form a...

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