Paterson v. State, 91-4140

• Decision Date: 26 January 1993
• Docket Number: No. 91-4140,91-4140
• Citation: 612 So.2d 692
• Parties: 18 Fla. L. Week. D402 Lewis C. PATERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 692

612 So.2d 692

18 Fla. L. Week. D402

Lewis C. PATERSON, Appellant, v. STATE of Florida, Appellee.

No. 91-4140.

District Court of Appeal of Florida,

First District.

Jan. 26, 1993.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Lewis C. Paterson appeals an order revoking his probation and imposing an increased amount of restitution to the victim. We affirm in part, reverse in part, and remand for further proceedings.

Appellant was charged with aggravated battery after intentionally driving his vehicle into the victim, who was standing on the sidewalk. Appellant entered a plea of nolo contendere, with a negotiated sentence of two years' probation. A special condition of the plea was that appellant would pay $2,222.50 in restitution to the victim.

The state filed an affidavit of violation of probation, asserting appellant was $160 in arrears with regard to the costs of his supervision, in violation of condition (2) of the probation order which required appellant to pay $40 per month towards the cost of his supervision. The state also asserted that appellant violated condition (8) because he failed to produce a urine specimen for urinalysis upon request of the probation officer. Condition (8) of the probation order required appellant to promptly and truthfully answer all inquiries directed to him by the court or the probation officer and to comply with all instructions the probation officer may give him.

After a revocation hearing, the trial judge found appellant to be in willful violation of probation based on failure to pay the costs of supervision and failure to obey the instructions of the probation officer. After a sentencing hearing, at which the victim testified regarding expenses incurred as a result of his injuries, the trial judge revoked appellant's probation and sentenced him to 15 months' imprisonment followed by 5 years' probation. The trial judge also ordered the appellant to pay $22,600 in restitution to the victim.

The trial judge improperly found appellant to be in violation of probation for failure to submit to urinalysis. The state's argument that the probation officer could order appellant to submit to urinalysis based on condition (6) of the probation order, which required appellant not to use intoxicants to excess, is meritless. Such a condition does not give the probation officer the discretion to impose testing requirements. The condition that appellant comply with all instructions the probation officer may give him is also insufficient to support a violation of probation for failure to follow an instruction by the probation officer to submit to urinalysis when such testing was not ordered by the trial judge. See, e.g., Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988) (A direction by the probation officer to set up an appointment for alcohol and drug counseling cannot be considered a condition imposed by the court by virtue of the court's general admonition that probationer comply with all instructions of the probation officer. The condition being imposed by the probation officer, the violation of it cannot serve as a basis for the revocation of probation.).

We also reject the state's argument that appellant may be found to be in violation of probation for failure to submit to urinalysis because such testing accords with section 948.03(1)(j), Florida Statutes (Supp.1990)....