RANDY YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randy Young appeals an order denying his Rule 3.850 motion for post-conviction relief following a probation revocation. The court reversed and remanded because the trial court failed to hold an evidentiary hearing on Young's allegations that he lacked ability to pay probation conditions and was denied adequate counsel representation.
The court reversed and remanded for an evidentiary hearing because Young's motion was sufficient on its face and the record did not conclusively show he was entitled to no relief. Probation cannot be revoked solely for nonpayment without a factual determination that the probationer was able to make the payments.
[1] An indigent probationer is entitled to counsel at a hearing on revocation of probation.
[2] Probation cannot be revoked solely for violation of a condition requiring payment without a factual determination by the court that the probationer was able to make payme…
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“An indigent probationer is entitled to counsel at a hearing on revocation of probation.”
Establishes Young's right to adequate representation at the revocation proceeding he was denied.
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Join FLexlaw to unlock all legal intelligenceYoung was convicted of involuntary sexual battery and sentenced to one year in jail and six years probation with conditions requiring restitution and …
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
This appeal seeks review of an order which denied without hearing appellant’s Rule 3.850 motion for post-conviction relief. We reverse and remand for an evidentiary hearing.
Appellant’s motion alleged that upon his conviction on a charge of involuntary sexual battery, he was sentenced to one year in jail and six years on probation; that a condition of probation was that he make restitution to his victim and pay a monthly supervision cost of $10.00; that while on probation he was arrested for violation of the above condition; that he was indigent and without funds to make the payments required as a condition of probation; that the court appointed the public defender to represent him at the revocation proceeding, but the public defender neither contacted him nor appeared at his revocation hearing: that at the revocation hearing the trial court made no finding of fact as to his ability to make the payments required as a condition of probation, the determination of which is required for a finding of violation based solely on the nonpayment of costs; and that he did not willfully avoid such payment. An indigent probationer is entitled to counsel at a hearing on revocation of probation. Gargan v. State, 217 So. 2d 578 (Fla. 4th DCA 1969). Presumably, counsel would have known that probation cannot be revoked solely for violation of a condition requiring payment without a factual determination by the court that the probationer was in fact able to make payments. Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978), reh. denied; Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975).
The motion for post-conviction relief was sufficient on its face, and in the absence of a copy of that portion of the files and records conclusively showing that the movant is entitled to no relief, an evidentiary hearing is required. Barfield v. State, 348 So. 2d 621 (Fla. 4th DCA 1977); Martin v. State, 349 So. 2d 226 (Fla. 4th DCA 1977); Fla.R.App.P. 9.140(g).
Depending upon the outcome of such hearing, and a further determination by the court as to whether appellant’s probation was properly revoked, the trial court will have the opportunity to review the sentence imposed upon appellant in light of the Supreme Court’s opinion and decision in the case of Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. Opinion 1980), reh. denied (Revised Opinion filed April 23, 1981).
The court’s order dated January 27,1981, denying appellant’s motion for post-conviction relief is reversed and this cause remanded for further proceedings consistent herewith.
REVERSED AND REMANDED.
SHAW and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…court’s denial of his motion. As Rule 3.850 itself notes, it is only when “the motion and the files and records in the case conclusively show that the prisoner is entitled to no’relief” that the motion can be denied without hearing. Young v. State, 399 So. 2d 1082 (Fla. 1st DCA 1981); Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980); Barfield v. State, 348 So. 2d 621 (Fla. 4th DCA 1977); Fla.R.App.P. 9.140(g). Obviously, the absence of the remedy of specific performance does not mean that the defendant is e…
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Sanderson v. State, 447 So. 2d 374 (Fla. 1st DCA 1984)…on revocation case in which the defendant does not have the right to appointed counsel — and Gagnon teaches that it is possible — then the instant case is an obvious candidate. We do not believe that this court’s previous opinion in Young v. State, 399 So. 2d 1082 (Fla. 1st DCA 1981), requires a different result. Although the court stated that “an indigent probationer is entitled to counsel at a hearing on revocation of probation,” the circumstances there were significantly different. In Young, the defendant…
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Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983)…o pay the court costs. Accordingly, the trial court erred in impliedly finding that defendant committed the violations alleged in Counts 3 and 5 of the affidavit of probation. See Winfield v. State, 406 So. 2d 50 (Fla. 1st DCA 1981); Young v. State, 399 So. 2d 1082 (Fla. 1st DCA 1981). Count 4 of the affidavit alleged that contrary to his probation officer’s instruction, defendant went to his wife’s house on or about December 1, 1982. Under the instant circumstances, this instruction by defendant’s probation…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975)
- Gargan v. State, 217 So. 2d 578 (Fla. 4th DCA 1969)
- Barfield v. State, 348 So. 2d 621 (Fla. 4th DCA 1977)
- Rayford Martin v. State, 349 So. 2d 226 (Fla. 4th DCA 1977)