Location:
Court of Appeal of Florida, Fourth District
Attorneys:
Richard L. Jorandby Public Defender and Frank B. Kessler Assistant Public Defender West Palm Beach for Appellant.
Robert L. Shevin Counsel General Tallahassee Anthony J. Golden Robert L. Bogen Assistant Counsels General and Charles A. Stampelos Legal Intern West Palm Beach for Appellee.
Court:
Downey J. Letts J. concurs. Dauksch J. dissents with opinion.
Only one of the three points appellant poses for our consideration has merit. In that point appellant contends that the order under review which placed him on probation for a period of seven years is not authorized by law. Since the offense to which appellant entered his negotiated plea was a third degree felony breaking and entering the maximum probationary period allowable by law is five years. See e.g. Holmes v. State 343 So.2d 632 (Fla.4th DCA 1977).
Although it has no merit the point which concerns several conditions of probation imposed by the trial court warrants discussion. Appellant contends that the following conditions are unreasonable: a) appellant must have no contact with Bruce Arnold Michael Smith Billy Arnold or Howard Isaacs (appellant's brother); b) Court retains custody over the person of the appellant and authorizes any probation supervisor and any law enforcement officer to search at any time the appellant and all vehicles and premises concerning which he has legal standing to give consent to the search; and c) appellant must submit to physical or chemical examinations upon the request of any probation supervisor or law enforcement officer to determine systemic presence of controlled substances or unlawfully acquired drugs. We reject appellant's contention and approve those conditions of probation. State v. Heath 343 So.2d 13 (Fla.1977); Pace v. State 350 So.2d 1075 (Fla.4th DCA 1977).
For the foregoing reasons the order under review is modified to reflect a probationary period of five years; in all other respects it is affirmed.
AFFIRMED as modified.
LETTS J. concurs.
Dissenting: DAUKSCH
I respectfully dissent.
As I predicted in Pace v. State 350 So.2d 1075 (Fla. 4th DCA 1977 see also dissent upon denial of rehearing Opinion filed October 11 1977) a very insidious to me trend was developing. Under Pace supra the probationer was required to submit to search with or without probable cause or even suspicion by any law enforcement officer at any time.
Now the standard is that the probationer must submit himself or herself to physical or chemical examination at anytime by any law enforcement officer.
I feel it unnecessary to reiterate but reaffirm my convictions stated in Pace supra.