Thomas v. State , 519 So. 2d 1113 ( 1988 )

519 So.2d 1113 (1988)

Christine THOMAS, Appellant,
v.
STATE of Florida, Appellee.

No. BS-275.

District Court of Appeal of Florida, First District.

February 10, 1988.

Michael E. Allen, Public Defender, and Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Beverly D. Berry, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

Christine Thomas appeals from her sentence of probation, challenging a special condition thereof that she is not to become pregnant during her term of probation unless she is married. We reverse.

Thomas pled no contest to counts I and II of an information charging her with grand theft and battery. The charges were based on her stealing six gold metal watches from a department store and subsequently struggling with a store employee and a citizen who attempted to stop her from fleeing. On appeal, she maintains that the special condition of probation is invalid under the three-pronged test set forth in Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979). The State maintains that Thomas has failed to preserve this issue for review as she made no objection below, citing Walker v. State, 461 So.2d 229 (Fla. 1st DCA 1984). However, Walker notwithstanding, the imposition of this special condition of probation is so grossly erroneous on its face as (1) bearing no relationship to the offense for which Thomas was convicted; (2) relating to conduct which is not in itself criminal; and (3) requiring or forbidding conduct which is not reasonably related to future criminality, in the interest of justice we must strike the special condition from the probation order. Cf. Howland v. State, 420 So.2d 918 (Fla. 1st DCA 1982).

ZEHMER, J., concurs.

BOOTH, J., dissents with written opinion.

BOOTH, Judge, dissenting:

Appellant raised no objection at sentencing to the condition of probation that she now seeks to challenge on appeal. The order below should be affirmed.