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In Watson v. State, 641 So.2d 432 (Fla. 5th DCA 1994), we held that in the absence of a contemporaneous objection, a defendant could appeal a condition of probation only if it was, in fact, "illegal," i.e., so egregious that it is the equivalent of fundamental error.
Summary of this case from Sweet v. StateOpinion
No. 94-253.
August 5, 1994. Rehearing Denied August 31, 1994.
Appeal from the Circuit Court for Volusia County; John W. Watson, III, Judge.
James B. Gibson, Public Defender, and Sean K. Ahmed, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant Watson raises four points on appeal, claiming the trial court erred in (1) imposing drug offender probation without a record basis to do so; (2) ordering as a special condition of probation that Watson avoid bars and liquor stores; (3) ordering Watson to pay $1.00 per month to First Step of Volusia County; and (4) imposing a public defender's lien of $100.00 without noticed hearing.
We reject Watson's first two points because, in the absence of a contemporaneous objection before the trial court, a defendant may appeal a condition of probation only if it is, in fact, illegal; if not, the failure to object is an absolute bar. Larson v. State, 572 So.2d 1368 (Fla. 1991). We do not find that the instant conditions imposed by the trial court are illegal, hence they do not constitute fundamental error. See also Boudreaux v. State, 578 So.2d 457 (Fla. 1st DCA 1991); Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), cert. denied, 419 So.2d 1195 (Fla. 1982).
We agree with the appellant in respect to the $1.00 assessment for First Step of Volusia County and strike that portion of the order. See Eckenrode v. State, 638 So.2d 214 (Fla. 5th DCA 1994); Gedeon v. State, 636 So.2d 178 (Fla. 5th DCA 1994); Botts v. State, 634 So.2d 197 (Fla. 5th DCA 1994); Thomas v. State, 633 So.2d 1122 (Fla. 5th DCA 1994). We also reverse the imposition of the fee for the public defender and remand for noticed hearing. Shipley v. State, 528 So.2d 902 (Fla. 1988); Klarstrom v. State, 610 So.2d 102 (Fla. 5th DCA 1992). See also Dukes v. State, 639 So.2d 140 (Fla. 5th DCA July 1, 1994).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HARRIS, C.J., and THOMPSON, J., concur.