MARGARETE MAY FILLASTRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1980-07-23
No. 79-2218
HOBSON, Acting C. J., and BOARD-MAN, J., concur.
387 So. 2d 400 Florida District Court of Appeal, Second District (1980) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Margarete Fillastre appealed an order modifying her probation conditions. The Florida District Court of Appeal struck down a condition requiring full-time employment in public service, finding it violated Florida Statutes § 948.031, which permits public service work only during hours outside regular employment, but affirmed the remaining probation modifications.


Holding

A trial court lacks authority to require that a probationer's public service be performed on a full-time employment basis. Section 948.031 permits public service as a condition of probation only when performed at times outside the person's regular hours of employment. The condition requiring Fillastre's full-time public service employment was therefore unconstitutional and must be stricken.


Headnotes

[1] A condition of probation requiring full-time public service employment is contrary to Florida Statutes Section 948.031, which permits public service to be performed at a…

[2] A trial judge may require public service as a condition of probation under Florida Statutes Section 948.031, provided it is performed for a tax-supported or tax-exempt en…

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Key Quotes

“Such public service shall be performed at a time other than during such person's regular hours of employment”

Establishes the statutory requirement limiting public service to non-working hours, directly contradicting the trial court's full-time employment condition.

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Facts & Procedural History

Fillastre was placed on probation after a felony conviction. The trial court added special condition (17) requiring her to be fully employed for one y…

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Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

On this appeal from an order of the trial court which modified the conditions of appellant’s probation, we find merit in one of the several points appellant raises. In the order the trial court added four additional conditions of probation including the following:

Special Condition (17) Subject, after release from the Polk County Jail, is to be fully employed for one year as an employee of one of the Agencies within the State of Florida to render services to “less advantaged” individuals which service is to be determined by her Probation Officer. That requirement is expressly contrary to Section 948.031, Florida Statutes (1977), which provides:
Any person who is convicted of a felony or misdemeanor and who is placed on probation may be required as a condition of probation to perform some type of public service for a tax-supported or tax-exempt entity, with the consent, and under the supervision of such entity. Such public service shall be performed at a time other than during such person's regular hours of employment (Emphasis supplied)

In 1976 the legislature authorized trial judges to require public service as a condition of probation when it prescribed the manner of doing so in the above addition to our probation statute. The authority for other terms and conditions of probation is found in Section 948.03.

It is clear from this record that the trial judge was proceeding under the authority of Section 948.031 when he added the special condition and that he intended appellant to perform some type of community service on a full-time paid basis to, in his words, “render services to persons who are less advantaged than you in the hope that exposure to persons who have not had some of your advantages may cause you to develop a prospective [sic] about yourself and develop a sense of responsibility about yourself personally, develop a sense of sensitivity and empathy.” A worthy goal, indeed. However, the trial judge was without authority to require that appellant’s public service be on a full-time employment basis. We must, therefore, disapprove the condition as imposed.

This is not a case where the probationer is unemployed and is ordered to make a reasonable attempt to find work. Appellant is and has been for two years employed full time as a dental hygienist and has established regular patients. That is not the type of employment which can interfere with or hinder appellant in the adherence to any of the other conditions of her probation.

While we find the condition for full-time public service employment is contrary to the statute, nothing we have said is meant to prevent the trial judge from imposing a condition of public service if he chooses to implement that laudable rehabilitative purpose in the manner permitted by the statute.

We strike the special condition we have discussed and affirm the order modifying appellant’s probation in all other respects.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


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Citator

Cited By

  • Normand Adams v. State, 444 So. 2d 558 (Fla. 4th DCA 1984)
    …e appellant’s claim that the trial court should have declared a mistrial upon discovering that "'appellant’s lawyer had been suspended from practicing law for the non-payment of dues. In my view this case is distinguishable from Huckelbury v. State, 387 So. 2d 400 (Fla. 2d DCA 1976) where the purported attorney involved had never been admitted to the bar. Because no actual prejudice has been demonstrated I would follow the lead of those cases which hold that the failure to pay dues, while a technical defect i…
  • Carpenter v. State, 507 So. 2d 616 (Fla. 4th DCA 1987)
    …itution. See Signorelli v. State, 491 So. 2d 349 (Fla. 4th DCA 1986). We reject appellant’s claim that the court’s imposition of 100 hours of community service per month for her five years of probation is unreasonable per se. See Fillastre v. State, 387 So. 2d 400 (Fla. 2d DCA 1980). DOWNEY, ANSTEAD and GUNTHER, JJ., concur.…

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