MARTIN B. COHEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's probation violation conviction for delivery of heroin is affirmed, but the violation for failure to pay supervision costs is reversed due to lack of evidence of ability to pay and reliance on hearsay.
Defendant was found to have violated probation based on a charge of delivery of heroin and failure to pay supervision costs. The defendant appeals thi…
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BERANEK, Judge.
Defendant had previously been adjudicated guilty of delivery of a controlled substance and was placed on probation for a term of three years. Defendant was subsequently charged with violating his probation and after hearing was found to be in violation of his probation. This appeal contests the violation holding. The violation of probation was based on findings that defendant was guilty of delivery of heroin and on the further ground that defendant was in violation of § 945.30 Fla.Stat. for failure to pay the costs of his supervision.
We find no error and affirm the conviction based upon the charge of delivery of heroin. We must, however, reverse the finding in regard to the cost of supervision. There was no evidence or finding regarding the defendant’s ability to make the payment on which he allegedly defaulted. Robbins v. State, 318 So. 2d 472 (Fla.4th DCA 1975). Further, this finding was based solely upon hearsay evidence. Sharp v. State, 303 So. 2d 56 (4th DCA 1974); White v. State, 301 So. 2d 464 (Fla.1st DCA 1974). For both of these reasons, the violation regarding defendant’s failure to pay cost of supervision was improper and is hereby reversed.
The conviction is affirmed based upon the criminal violation of delivery of heroin. The finding regarding cost of supervision is reversed and the cause is remanded to the trial court for resentencing in light of this reversal.
AFFIRMED IN PART AND REVERSED IN PART. REVERSED WITH DIRECTIONS.
DAUKSCH and MOORE, JJ., concur.
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Johnson v. State, 378 So. 2d 108 (Fla. 5th DCA 1980)…Jones, supra. Consequently, we affirm the finding of the trial court that defendant violated condition (c) and reverse its finding that condition (a) was violated, and this cause is remanded to the trial court for resentencing. See Cohen v. State, 365 So. 2d 1052 (Fla. 4th DCA 1978). AFFIRMED IN PART AND REVERSED IN PART. REVERSED WITH DIRECTIONS. DAUKSCH, C. J., and SHARP, J., concur.…
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Smith v. State, 380 So. 2d 1175 (Fla. 4th DCA 1980)…oner to make periodic payments to the state. There must be a sufficient demonstration of ability to pay. See Woodard v. State, 371 So. 2d 708 (Fla. 4th DCA 1979). And there must be a specific finding regarding the ability to pay. See Cohen v. State, 365 So. 2d 1052 (Fla. 4th DCA 1978). We therefore remand the cause with directions to strike the holding that failure to make monthly payments was a violation of probation. We affirm this cause in all other respects. AFFIRMED AS MODIFIED. ANSTEAD, LETTS and HER…
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Fleming v. State, 372 So. 2d 132 (Fla. 4th DCA 1979)…ellant’s failure to pay a number of monthly supervisory fees was in error because there was no proof that appellant had the financial ability to make the payments. Accordingly, that portion of the revocation order should be stricken. Cohen v. State, 365 So. 2d 1052 (Fla. 4th DCA 1978).…
Authorities Cited
- White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974)
- Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975)
- Parker v. State, 303 So. 2d 56 (Fla. 4th DCA 1974)
- Obie Lee Sharp v. State, 303 So. 2d 56 (Fla. 4th DCA 1974)