Andrew v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
ARTHUR ANDREW,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D08-1258
[August 6, 2008]
PER CURIAM.
Arthur Andrew (“Andrew”) entered an open guilty plea to burglary of a
dwelling with a battery and strong arm robbery, and was sentenced to
6.25 years in prison, followed by 5 years of drug offender probation. He
appeals the denial of his motion to correct illegal sentence, in which he
challenged the trial court’s authority to impose the drug offender aspect
of his probation.
“A defendant may not be sentenced to drug offender probation unless
he has been convicted of an enumerated chapter 893 offense or he has
specifically agreed to such probation in a plea agreement.” Ackermann v.
State, 962 So. 2d 407, 408 (Fla. 1st DCA 2007) (reversing summary
denial of rule 3.800(a) motion); accord Anderson v. State, 941 So. 2d 446
(Fla. 4th DCA 2006); Parker v. State, 839 So. 2d 736 (Fla. 1st DCA 2003);
see also § 948.034, Fla. Stat (2003). However, a court may impose
special conditions of probation which are desirable for rehabilitation.
Biller v. State, 618 So. 2d 734 (Fla. 1993). “In determining whether a
condition of probation is reasonably related to rehabilitation, . . . 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 itself criminal,
and (3) requires or forbids conduct which is not reasonably related to
future criminality.” Id. at 734-35 (quoting Rodriguez v. State, 378 So. 2d
7, 9 (Fla. 2d DCA 1979)).
During his sentencing hearing, Andrew admitted he was an addict.
However, we are unable to determine from the record whether those
conditions associated with d r u g offender probation are reasonably
related to Andrew’s rehabilitation and, therefore, would be appropriate
special conditions of probation under the Biller test. Accordingly, we
reverse only that portion of Andrew’s sentence which imposes drug
offender probation, with leave for the trial court to substitute a term of
probation with or without special conditions related to substance abuse;
provided such special conditions satisfy the Biller test.
Reversed and Remanded.
SHAHOOD, C.J., STONE and DAMOORGIAN, JJ., concur.
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No. 04-9912CF10A.
Michael R. Ohle of Ohle & Ohle, Fort Pierce, for appellant.
Bill McCollum, Attorney General, Tallahassee, and August Bonavita,
Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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