EDDIE BYRD, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eddie Byrd Jr. appealed the revocation of his probation and his conviction for resisting an officer with violence and battery on a law enforcement officer, challenging both the grounds for revocation and the resulting sentence. The appellate court affirmed the probation revocation based on grand theft but reversed the portion based on non-payment of supervision costs, finding the trial court failed to make a specific finding that Byrd was able to pay.
The trial court properly revoked probation based on the grand theft offense, but erred in revoking probation for non-payment of supervision costs without first making a specific finding that the defendant was able to pay. The probation revocation is affirmed except that the non-payment ground is reversed and stricken from the order.
[1] A trial court may not revoke probation for non-payment of supervision costs without first finding the defendant was able to make such payments.
[2] A defendant's commission of a new offense, such as grand theft, can be a sufficient ground to revoke probation.
Previewing 2 of 3 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“the trial court erred in revoking the appellant's probation for non-payment of costs of supervision without a prior and specific finding that the defendant was, in fact, able to make payments for probation supervision”
Establishes the legal requirement for ability-to-pay finding before revoking probation for non-payment
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Join FLexlaw to unlock all legal intelligenceByrd's probation was revoked on two grounds: commission of grand theft and failure to make payments to cover the cost of supervision under Florida Sta…
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VANN, HAROLD R. (Ret.) Associate Judge.
The defendant brings this appeal seeking review of the trial court’s orders revoking his probation, adjudging him guilty of resisting an officer with violence to his person and battery on a law enforcement officer, and sentencing him to five years in the state penitentiary.
The order revoking probation stated as grounds therefor the offense of grand theft and failure to make payments to cover cost of supervision, pursuant to Section 945.30, Florida Statutes (1979). The appel lant contends the trial court erred in both of these findings. We agree in part, and find that the trial court erred in revoking the appellant’s probation for non-payment of costs of supervision without a prior and specific finding that the defendant was, in fact, able to make payments for probation supervision. See: Coxon v. State, 365 So. 2d 1067 (Fla.2d DCA 1979); Smith v. State, 373 So. 2d 76 (Fla.3d DCA 1979); DeLuca v. State, 383 So. 2d 751 (Fla.4th DCA 1980). Therefore, we reverse that portion of the revocation order and remand, with directions that the violation be stricken from the order. However, we will not reverse the order of revocation, as the record herein clearly shows that the offense of grand theft was sufficiently demonstrated so as to satisfy the conscience of the court that the defendant materially violated the terms of his probation. Randolph v. State, 292 So. 2d 374 (Fla.3d DCA 1974); Thomas v. State, 358 So. 2d 114 (Fla.3d DCA 1978).
Accordingly, we affirm the order revoking the defendant’s probation, except as modified by our reversal of that ground revoking the defendant’s probation for non-payment of costs of supervision.
Affirmed as modified.
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Citator
Authorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Randolph v. State, 292 So. 2d 374 (Fla. 3d DCA 1974)
- Smith v. State, 373 So. 2d 76 (Fla. 3d DCA 1979)
- Thomas v. State, 358 So. 2d 114 (Fla. 3d DCA 1978)
- Deluca v. State, 383 So. 2d 751 (Fla. 4th DCA 1980)