Norris v. StateNorris v. State
In these consolidated appeals, the appellant claims error by the trial court in denying motions to dismiss an information and an affidavit of violation of probation and in revoking his probation for an alleged violation of a term of his probation requiring him to live honorably.
Appellant was charged with maliciously рunishing a child in violation of
After the denial of the mоtion to dismiss the appellant entered a plea of nolo contendere and was placed on probation for а term of ten years. By the terms of his probation appellant was enjoined from violating any law and by a special condition was ordered to live honorably. Subsequently he was charged with violating the special condition requiring him to live honorably, by committing a battеry upon his wife on two separate occasions. At the probation revocation hearing appellant moved to dismiss thе two charges on the basis that the condition of probation requiring him to live honorably was too vague and uncertain to put him on rеasonable notice of prohibited conduct. This was the first time the probationer had raised any objection to the conditiоn. The trial court denied the motion; and after substantial proof of the alleged batteries was submitted, appellant‘s probatiоn was revoked.
In Hines v. State, 358 So.2d 183 (Fla. 1978) revocation was upheld even though the charging affidavit merely alleged that the probationer had been arrested for a felony. At Hines’ revocation hearing it was actually proven that he had committed a burglary. The Supreme Court held that although probation could not be revoked merely upon a showing of an arrest, the probationer had been given sufficient notice of the actual misconduct charged, in that case a burglary,
In the present case, the written factual allegations in the affidavit for violation оf probation were insufficient to provide notice to the probationer with what criminal acts he was charged. In this case, hоwever, we find this to be harmless error since the record shows that the probationer clearly had actual notice of the сharges, that he was arrested near the scene of the crime shortly after its occurrence, and that he made a confession to his involvement. There was no violation of the probationer‘s due process rights. Petitioner‘s probation was revoked uрon adequate proof of burglary for which he was arrested by Deputy Blosser on 3/13/76. The circumstances here are not comрarable to those cases in which a person‘s probation has been revoked based upon proof of charges оther than those with which he was notified in the affidavit of violation. (footnote omitted)
Similarly, here, the appellant was expressly charged with violating his probation by committing two successive batteries upon his wife. The details of the batteries were set out in the charging affidavit. One of the conditions of appellant‘s probation specifically prohibited him from violating the law. Both the affidavits and proof showed that he had violated the law on two occasions and hence was in violation of his probation. No cоntention is made, nor is there any indication in the record, that appellant was prejudiced because, rather than the charging affidavit alleging that the misconduct in question constituted a violation of the condition of probation requiring the appellant to live within the law, the affidavit instead alleged that such conduct violated the condition requiring him to live honorably. We find that the appellant had specific notice of the actual misconduct charged. Accordingly, we find any error in denying the motion to dismiss to be harmless.
Although, under the circumstances of this case, we find no harmful error by the trial court in denying the appellant‘s motion to dismiss and subsequently revoking the appellant‘s probation, we agree that a condition of probation requiring a probationer to live honorаbly is too vague and uncertain to apprise him of the type of conduct which would give rise to a violation of his probation. Hеnce, if properly challenged, such a condition should be stricken.
In De Stefano v. State, 377 So.2d 751 (Fla. 4th DCA 1979), this writer expressed the view that a condition of probation requiring a probationer to live honorably was impermissibly vague and overbroad:
A probationer should be put on reasonablе notice of any conduct prohibited during his term of probation. Almond v. State, 350 So.2d 810 (Fla. 4th DCA 1977); Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952). While I am in full agreement that everyone, generally, and probatiоners, in particular, should conduct themselves honorably, I believe that such a requirement is too broad and ambiguous to establish a clear guideline for the appellant‘s conduct during probation. In its other provisions prohibiting violations of the law, restricting residenсy, etc., the order of probation more than adequately sets objective standards of conduct for the probationer. In contrast, the special provision is nothing more than a vague catch-all which is subject to varying interpretations depending on thе subjective moral code of the individual.
For these reasons we now expressly disapprove such a condition of probаtion.1
We do not believe the case of Sellers v. Bridges, 153 Fla. 586, 15 So.2d 693 (1943), cited by the state, conflicts with the decision
In accordance with the above, the judgment and sentence of the trial court are hereby affirmed.
DOWNEY, C.J., and MOORE, J., concur.