               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


RODNEY C. WILLIAMS,                          )
                                             )
             Appellant,                      )
                                             )
v.                                           )   Case No. 2D14-5500
                                             )
STATE OF FLORIDA                             )
                                             )
             Appellee.                       )
                                             )

Opinion filed January 15, 2016.

Appeal from the Circuit Court for
Hillsborough County; Emmett L. Battles,
Judge.

Howard L. Dimmig, II, Public Defender,
and Brooke Elvington, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lisa Martin,
Assistant Attorney General, Tampa,
for Appellee.



LUCAS, Judge.

             Rodney Williams appeals his judgment and sentence for grand theft in the

third degree. Mr. Williams raises several issues on appeal. We find merit in Mr.

Williams' argument that the trial court erroneously imposed certain special conditions of
probation and reverse and remand his probation sentence in part. We affirm on all the

remaining issues raised in this appeal without comment.

                                              I.

              A jury found Mr. Williams guilty of grand theft for his role in the theft of

merchandise from a Walmart store. At sentencing, the trial court adjudicated Mr.

Williams a habitual felony offender and sentenced him to eighteen months in prison

followed by four years of probation. During the sentencing hearing, as the trial court

considered the evidence and arguments concerning probation, the presiding judge

remarked:

              The defendant also stated at the time he went to jail he was
              using marijuana daily. He was also using cocaine and
              mollies on the weekends. And he also stated that he would
              drink alcohol every other day and on the weekends.

(Emphasis added.) Beyond this observation, there was no other evidence presented to

the trial court concerning what role, if any, alcohol had ever played in Mr. Williams' life.

Nevertheless, the trial court fashioned the following special conditions as part of Mr.

Williams' probation:

              1 You must undergo a Drug and Alcohol evaluation and, if
              treatment is deemed necessary, you must successfully
              complete the treatment, and be responsible for the payment
              of any costs incurred while receiving said evaluation and
              treatment, unless waived by the court.

              24 [D]efendant ordered no alcohol while on probation. 1

              While his direct appeal was pending, Mr. Williams filed a Florida Rule of

Criminal Procedure 3.800(b)(2) motion to correct sentencing error, arguing that the trial



              1
              The parties have assumed, as will we, that condition 24 prohibits Mr.
Williams from consuming or possessing alcohol during his probation.


                                             -2-
court erroneously imposed these special conditions on his probation. Citing this court's

decision in Richardson v. State, 620 So. 2d 257, 257 (Fla. 2d DCA 1993), Mr. Williams

contended that the special conditions the court imposed (1) had no relationship with the

underlying crime for which he was convicted, (2) related to conduct which was not itself

criminal, and (3) prohibited conduct that was not reasonably related to any prospect of

future criminality.

               The trial court denied Mr. Williams' motion, finding that the special

conditions both related to criminal conduct and restrained conduct reasonably related to

future criminality. Insofar as the special conditions prohibited his use or possession of

alcohol, we disagree.

                                              II.

               Although a sentencing court enjoys broad discretion in fashioning special

conditions to probation, it is not unbounded. See Carty v. State, 79 So. 3d 239, 240

(Fla. 1st DCA 2012) ("The trial court has broad discretion in imposing conditions of

probation, but to be valid, the condition must be 'reasonably related to rehabilitation.' "

(quoting Stephens v. State, 659 So. 2d 1303, 1304 (Fla. 1st DCA 1995))); Williams v.

State, 474 So. 2d 1260, 1260 (Fla. 1st DCA 1985) ("A special condition of probation

cannot be imposed if it is so punitive as to be unrelated to rehabilitation." (citing

Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976))).

               The parameters of "relatedness," and what it would entail for special

probation conditions, were substantially developed by our court in the case of Rodriguez

v. State, 378 So. 2d 7, 9 (Fla. 2d DCA 1979), where we explained that "[t]he

standard . . . for evaluation of probation conditions" was "that of relationship to




                                             -3-
rehabilitation." We described three relational factors that should be considered

whenever a court imposes a special probation condition:

              In determining whether a condition of probation is
              reasonably related to rehabilitation, we believe that 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 in itself criminal, and (3) requires or forbids
              conduct which is not reasonably related to future criminality.

Id.

              The Florida Supreme Court later approved of the analysis our court

fashioned in Rodriguez. See Biller v. State, 618 So. 2d 734 (Fla. 1993). In Biller, the

court struck a special condition of probation prohibiting consumption of alcohol for a

probationer who had been convicted of carrying a concealed firearm and carrying a

concealed weapon. Id. at 735. Although the sentencing court offered that the

defendant's use of alcohol might impair his judgment, the Biller court was unpersuaded

that this condition of probation sufficiently related to the nature of the convictions. Id.

The court observed:

              While the judge need not make a finding, a special condition
              of probation, when challenged on grounds of relevancy, will
              only be upheld if the record supports at least one of the
              circumstances outlined in Rodriguez. With respect to Biller,
              there was nothing connecting any use of alcohol with the
              crimes with which he stands convicted, and the use of
              alcohol by adults is legal. Furthermore there was nothing in
              the record . . . which would suggest that Biller has a
              propensity towards alcohol or that his judgment becomes
              impaired as a consequence of using it.

Id. (emphasis added).

              In the case at bar, we discern two shortcomings with the special

conditions imposed on Mr. Williams' probation. First, applying Biller and Rodriguez, we




                                             -4-
cannot see how the facts of this case and the convictions for which Mr. Williams must

now serve probation have any connection whatsoever with his consumption of alcohol

under the first Rodriguez factor. Cf. Boyd v. State, 749 So. 2d 536, 536 (Fla. 2d DCA

2000) (holding that "the use or possession of alcohol, or associating with persons who

consume alcohol, or frequenting places where alcohol is the main source of business"

was "unrelated to the offense of solicitation or delivery of cocaine"). Indeed, the State

does not appear to argue to the contrary in this appeal. And since consuming alcohol

has been legal in the United States for quite some time now, the second Rodriguez

factor is also clearly inapplicable to the case at bar. Turning to the third factor under

Rodriguez, the absence of any evidentiary connection between Mr. Williams' prior

criminality and alcohol use would seem to warrant some particularized evidence to

show that, now, for whatever reason, his use of alcohol could fuel future criminal

behavior on his part. There was no such evidence to be found in this record. Cf. Saidi

v. State, 845 So. 2d 1022, 1027 (Fla. 5th DCA 2003) ("When a question is raised

concerning the relevancy of a special condition of probation, the record must support

the imposition of the condition." (citing McCarthren v. State, 635 So. 2d 1005, 1006 (Fla.

5th DCA 1994))). Thus, the special conditions prohibiting alcohol were not supported by

any of the Rodriguez factors; for that reason, they must be stricken from Mr. Williams'

probation.

              But beyond the individuated Rodriguez factors, we would also note there

was no showing that a prohibition against consuming alcohol could advance a broader

goal of rehabilitating Mr. Williams in any meaningful sense. We could surmise that

swearing off alcohol for the next four years might better Mr. Williams' general prospects




                                            -5-
and overall outlook on life. Perhaps it could even improve the likelihood that he will

complete the terms of his probation successfully. Cf. Pulecio v. State, 160 So. 3d 556,

558-59 (Fla. 2d DCA 2015) (Altenbernd, J., concurring) (noting that probationary

condition against self-employment "may not fit within the three Rodriguez factors, but it

would greatly increase the stability of Mr. Pulecio's life and assure that he had a far

greater chance of satisfying" the general conditions of a ten-year term of probation).

But without the link of a reasonable relationship between these special probation

conditions and Mr. Williams' case, we are left with nothing but supposition. And

supposition alone cannot warrant a restraint—enforced by the threat of state

prosecution and incarceration—upon an otherwise lawful activity as a special condition

of probation. Cf. Biller, 618 So. 2d at 735.

                                               III.

              Accordingly, we affirm the circuit court's judgment and sentence, except

as to condition twenty-four and the portion of condition one, requiring Mr. Williams to be

evaluated and treated for alcohol abuse, which we reverse and remand for the court to

strike from Mr. Williams' probation.

              Affirmed in part; reversed in part; remanded with instructions.



VILLANTI, C.J., and ALTENBERND, J., Concur.




                                            -6-
