I. P. J., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
Two petitions for delinquency were filed against appellant, one charging appellant with prowling and the second alleging appellant had violated his community control by (1) being arrested for prowling, and (2) failing to make restitution as required. The juvenile division of the circuit court found the charges to be true and adjudicated appellant delinquent. We reverse.
The State established only that appellant was on a city sidewalk in a commercial area of Jacksonville at two o’clock in the morning. This evidence fails to meet the standards set forth for a prowling conviction in State v. Ecker, 311 So. 2d 104 (Fla.1975), or the lesser standard of the greater weight of the evidence necessary to support a probation violation based on the prowling arrest. Wheeler v. State, 344 So. 2d 630 (Fla.2d DCA 1977). The violation of probation cannot be affirmed on the failure of appellant to make restitution, as the State failed to produce any evidence showing that appellant had the financial ability to make the payments. Coxon v. State, 365 So. 2d 1067 (Fla.2d DCA 1979).
The order is REVERSED.
McCORD, SHIVERS and BOOTH, JJ., concur.
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Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)…v. State, 465 So. 2d 625 (Fla. 2d DCA 1985). And, prior to enactment of the 1984 amendments to Chapter 948, the burden was on the state “to produce ... evidence showing that appellant had the financial ability to make the payments.” I.P.J. v. State, 402 So. 2d 1373 (Fla. 1st DCA 1981). See also: Fogarty v. State, 465 So. 2d 625 (Fla. 2d DCA 1985); Gordon v. State, 448 So. 2d 76 (Fla. 4th DCA 1984); Pope v. State, 444 So. 2d 1161 (Fla. 3rd DCA 1984); Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983); Coxon v…
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Winfield v. State, 406 So. 2d 50 (Fla. 1st DCA 1981)…made may not be a basis for a probation violation unless the court specifically finds that the probationer’s “financial condition is such that payment can be made.” Jones v. State, 360 So. 2d 1158, 1160 (Fla. 1st DCA 1978). See also I.P.J. v. State, 402 So. 2d 1373 (Fla. 1st DCA 1981); Coxon v. State, 365 So. 2d 1067 (Fla. 2nd DCA 1979). In Jones, this Court stated that such a finding requires evidence of a probationer’s financial condition both at the time when probation was ordered and at the time of the all…
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Authorities Cited
- State v. Ecker, 311 So. 2d 104 (Fla. 1975)
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Wheeler v. State, 344 So. 2d 630 (Fla. 2d DCA 1977)