Wilkinson v. State

388 So.2d 1322 (1980)

Carlton Everett WILKINSON, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 79-273.

District Court of Appeal of Florida, Fifth District.

October 8, 1980.

James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, and Christopher S. Quarles, Certified Legal Intern, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an order of the Circuit Court for Orange County withholding adjudication of guilt and placing appellant on probation.

The only question with which we are concerned is whether the trial court erred in prohibiting appellant, as a condition of probation, from living with a female to whom he is not married or related.

We agree that the condition was improper and strike it. The order appealed is otherwise affirmed.

The Second District Court of Appeal in Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979), enunciated a test for determining whether a condition of probation is reasonably related to rehabilitation. The court said a condition is invalid if it:

(1) has no relationship to the crime of which the offender was convicted;

(2) relates to conduct which is not in itself criminal, and

(3) requires or forbids conduct which is not reasonably related to future criminality.

Here, appellant pled nolo contendere to a charge of carrying a concealed firearm. The condition imposed bears no reasonable relation to the crime of which appellant was convicted.^[1]

Accordingly, we hold the condition prohibiting defendant from living with a female to whom he is not married or related is invalid and strike this condition from the order appealed. The order is otherwise affirmed as modified.

DAUKSCH, C.J., and COBB, J., concur.

NOTES

[1] See also Wiggins v. State, 386 So.2d 46 (Fla. 4th DCA 1980), holding a condition of probation prohibiting sexual intercourse with one other than appellant's lawfully married spouse to be an improper condition of probation after conviction for forgery.