BOBBY EARL PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby Earl Peterson appeals the trial court's revocation of his probation. The court reverses and remands because the trial court failed to make specific findings regarding Peterson's ability to pay the monetary conditions of his probation despite finding him indigent.
The court reversed and remanded because the trial court failed to make specific findings about Peterson's financial condition at the time the probation was entered and at the time of the revocation hearing, which are prerequisites to enforcing monetary probation conditions against an indigent defendant.
[1] A trial court must find that an indigent defendant has the financial ability to make payments before enforcing a probation order requiring such payments.
[2] A probation revocation order based on failure to pay monetary conditions is invalid without a specific finding by the trial court that the defendant had the ability to pa…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in order for an order of probation requiring payments of costs by a defendant to be enforceable, the court must find that the indigent defendant's financial condition is such that payment can be made.”
Establishes the legal requirement that trial courts must make explicit findings regarding an indigent defendant's ability to pay probation costs before enforcing such conditions.
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Join FLexlaw to unlock all legal intelligencePeterson was on probation with conditions requiring him to pay toward supervision costs, restitution of $1,944, and court costs, as well as to work di…
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LILES, WOODIE A., Associate Judge (Retired).
Appellant appeals the trial court’s revocation of his probation. We reverse and remand.
Appellant was charged with failing to abide by the conditions of his probation requiring him to pay toward his cost of supervision pursuant to § 945.30, Fla.Stat., to pay $1,944 in restitution to a victim, and to pay the cost of the defense and prosecution in his case. He was also charged with breaching the conditions requiring him to work diligently at a lawful occupation and to support his dependents to the best of his ability.
At the revocation hearing, appellant, having been declared indigent, was represented by a public defender. Testimony indicated that appellant is employed, earning $3 per hour. Testimony further indicated that appellant did have certain expenses to meet, such as transporting his children from Texas to Florida. The record before this Court does not show conclusively, and the trial court did not specifically find, that appellant has the ability to make the payments required of him as part of his probationary condition. In Jones v. State, 360 So. 2d 1158 (Fla. 1 DCA 1978), this Court declared:
We agree that these cases indicate that in order for an order of probation requiring payments of costs by a defendant to be enforceable, the court must find that the indigent defendant’s financial condition is such that payment can be made. The record before us does not reveal that this determination was made. Accordingly, it is necessary that this cause be reversed and remanded for a further hearing before the court.
At such hearing, the testimony should establish specifically the financial condition of appellant at the time the probation order was entered. Further, the financial condition of appellant at the present time should be examined. The court should make findings of fact concerning the aforementioned and should specifically determine whether appellant had the ability to pay costs during the probationary period.
See also Coxon v. State, 365 So. 2d 1067 (Fla. 2 DCA 1979). On the basis of Jones and Coxon, and especially considering the fact that appellant was declared indigent by the trial court, we reverse and remand to the trial court for a determination of whether appellant has the ability to meet the monetary conditions of his probation.
We recognize that in this case appellant’s probation possibly could have been revoked solely on the basis of the charge that appellant was periodically unemployed, in violation of one of his conditions of probation. However, as appellant points out, he was unemployed only from September 1976 until June 1977 and from October 1977 until March 1978. In April 1978 he was charged with violating probation in that he failed to work diligently at a lawful occupation in reference to the same two periods of unemployment, but the court did not choose to revoke his probation on that ground at that time. He has been gainfully employed since that time. We are unsure as to whether the trial court would have revoked appellant’s probation in this case and imposed the same sentence for the sole reason that appellant failed to be gainfully employed during certain months of 1977 and 1978. Therefore, we decline to uphold the probation revocation on that ground alone and instead remand for further consideration. Compare Page v. State, 363 So. 2d 621 (Fla. 1 DCA 1978).
Reversed and remanded for further consideration consistent with this opinion.
BOOTH and SHAW, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
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Albritton v. State, 476 So. 2d 158 (Fla. 1985)…an improper ground. Watts v. State, 410 So. 2d 600, 601 (Fla. 1st DCA 1982); Aaron v. State, 400 So. 2d 1033, 1035 (Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981); Clemons v. State, 388 So. 2d 639, 640 (Fla. 2d DCA 1980); Peterson v. State, 384 So. 2d 965, 966 (Fla. 1st DCA 1980); Page v. State, 363 So. 2d 621, 622 (Fla. 1st DCA 1978); McKeever v. State, 359 So. 2d 905, 906 (Fla. 2d DCA 1978). Respondent urges the contrary and would have a reviewing court affirm a departure sentence where a valid rea…
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Aaron v. State, 400 So. 2d 1033 (Fla. 3d DCA 1981)…and the record does not support any finding that the defendant had the ability to pay the victim’s medical costs or the costs of probation supervision. A showing of solvency must precede revocation for non-payment of restitution, Peterson v. State, 384 So. 2d 965 (Fla.1st DCA 1980), and for failure to pay the costs of probation supervision, Sampson v. State, 375 So. 2d 325 (Fla.2d DCA 1979). Consequently, revoking the defendant’s probation for these two grounds was error. The record reflects that the defend…
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Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981)…’s probation on the basis of the 1979 allegations that he failed to make restitution and cost of supervision payments. This is so because the record is void of any evidence showing that the defendant was able to make the payments. Peterson v. State, 384 So. 2d 965 (Fla. 1st DCA 1980). Therefore, the judge should not have based the revocation order on the failure to make restitution and supervision payments, or the 1980 criminal acts. The only remaining allegation of probation violation was the failure to su…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)