Rowland v. State, 88-1336
| Decision Date | 07 September 1989 |
| Docket Number | No. 88-1336,88-1336 |
| Citation | 14 Fla. L. Weekly 2105,548 So.2d 812 |
| Parties | 14 Fla. L. Weekly 2105 Joe Pat ROWLAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant pled nolo contendere to one count of possession of a controlled substance, specifically reserving his right to challenge the trial court's order denying his motion to suppress the cocaine seized in a warrantless search of his truck. We find that the stop and search was reasonable, and we affirm the order denying the motion to suppress.
Appellant also challenges the order placing him on probation, asserting first that the court failed to comply with due process requirements in imposing certain monetary costs. The state concedes this issue. We reverse and remand with directions that the trial court afford appellant notice and opportunity to object to the imposition of the costs. Shipley v. State, 528 So.2d 902 (Fla.1988); Mays v. State, 519 So.2d 618 (Fla.1988); Moore v. State, 530 So.2d 61 (Fla. 1st DCA 1988).
Appellant contends next that, at the sentencing hearing, the trial court pronounced that he should "be gainfully employed for at least thirty hours per week." However, condition 7 of the written order only required appellant to "work diligently at a lawful occupation." He asserts that the condition must be modified to read: "Maintain full-time gainful employment of not less than thirty (30) hours per week or actively seek gainful employment." The state concedes this issue. Upon remand, we direct the trial court to conform its oral pronouncement requiring gainful employment of 30 hours per week with the written order setting forth the conditions of probation.
The next issue concerns condition 14 of the probation order, which provides: "You will receive alcohol, drug and psychological evaluation and counseling as directed by your probation officer." Appellant argues that the trial court impermissibly delegated to the probation officer the exclusive authority to require that appellant attend the treatment and counseling, citing Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982). In Holterhaus, the trial court imposed, as a condition of probation, that the probationer comply with all instructions given by his probation officer. The probation officer directed the probationer to complete a drug rehabilitation program. The probationer's subsequent failure to complete the program led to the revocation of his probation. The Second District Court of Appeal reversed, holding that the court-ordered condition neither authorized nor encompassed the probation officer's directive; nor did the directive constitute a routine supervisory function of the probation officer. Id. at 292.
Appellant's reliance on Holterhaus is misplaced. While only the court can impose conditions of probation, it may delegate the normal supervision of those conditions to the probation officer. Draper v. State, 403 So.2d 615, 616 (Fla. 5th DCA 1981). Such delegation is necessary for effective and successful supervision of the probation. Id. We agree with the state that condition 14 expressly requires that appellant undergo the alcohol, drug and psychological evaluation and counseling. A reasonable interpretation of the "as directed by" language of the condition indicates that the probation officer should routinely supervise and monitor the evaluation and counseling. The condition as articulated by the court does not unlawfully delegate to the probation officer the judicial responsibility of setting terms and conditions of probation.
Appellant suggests that section 948.03(6), Florida Statutes (1987), provides the proper method for ordering diagnosis and treatment of offenders thought to need mental health services. Appellant misreads section 948.03(6), which applies solely to probationers or offenders in community control who have committed certain pedophilic offenses. The statute requires that, once a court makes a determination that treatment is necessary, it shall order outpatient counseling as a term or condition of the probation or community control. Section 948.03 enumerates a non-exhaustive list of specific kinds of terms and conditions of probation or community control that a court may impose. While alcohol, drug and psychological evaluation and counseling is not specifically included in the list, section 948.03(7) provides that the court may add other...
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