JOHNSON v. STATE, 386 So.2d 291 (Fla.App. 5 Dist. 1980)

CLIFTON JOHNSON, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 79-422/T4-421.District Court of Appeal of Florida, Fifth District.
July 23, 1980.

Appeal from the Circuit Court, Brevard County, Robert B. McGregor, J.

Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.

WALKER, GRISSIM H., Associate Judge.

Appellant was charged with first degree murder and found guilty by the jury of the lesser included offense of manslaughter.

The state moved for an enhanced penalty under section 775.084 Florida Statutes (1977). The court, following a sentencing hearing as provided in the statute, imposed an enhanced penalty. The appellant contends there were errors in the sentencing proceedings but this court finds none and affirms the sentence except as hereinafter set forth.

Appellant was sentenced to 30 years imprisonment, with the final 10 years suspended and the appellant to be on probation during the 10 years. Condition IV of the probation condition placed upon appellant states:

Search: The Court retains custody over the person of the probationer and authorizes any probation supervisor and any law enforcement officer to search, at any time, the probationer and all vehicles and premises concerning which he has legal standing to give consent to search.

Appellant contests the search condition insofar as it authorizes searches by any law enforcement officer. This provision violates the search and seizure provisions of the Federal and Florida Constitutions. Grubbs v. State, 373 So.2d 905
(Fla. 1979); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980).

Therefore, the judgment and sentence are affirmed except the probation condition

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authorizing a warrantless search at any time by law enforcement officers is hereby ordered stricken.

Affirmed as modified.

ORFINGER and SHARP, JJ., concur.