JAMES EDWARDS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Edwards challenged the revocation of his probation for writing worthless checks. The court affirmed revocation based on two valid violations (leaving the county without permission and failing to file monthly reports) but reversed as to two violations for which the state failed to prove Edwards' financial ability to pay restitution and supervision costs.
The court affirmed the probation revocation based on two valid violations: Edwards' unauthorized departure from the county and his failure to file monthly written reports. However, the court reversed the revocation as to the two financial violations (unpaid restitution and supervision costs) because the state failed to prove Edwards was financially able to make these payments. A probationer's inability to pay is a prerequisite for revocation on financial grounds.
[1] A technical violation of a probation condition is sufficient to support revocation of probation.
[2] Failure to submit written monthly reports constitutes a substantial violation of probation conditions.
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Join FLexlaw to unlock all legal intelligence“It is undisputed that the appellant left the county without the consent of his supervising probation officer. While this violation is technical in nature, it is sufficient to support revocation of probation.”
Establishes that even technical violations of probation conditions can support revocation.
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Join FLexlaw to unlock all legal intelligenceEdwards was placed on probation in July 1982 for writing six worthless checks totaling $878, subject to four conditions: not leaving Dade County witho…
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NESBITT, Judge.
On July 12,1982, appellant was placed on probation for writing six worthless checks totalling $878. Several conditions were imposed on the appellant in the order granting probation. Four months later, appellant’s probation supervisor filed an affidavit alleging that appellant had violated four of the conditions of probation. After a hearing, the trial court entered an order revoking probation. The order recited all four violated conditions as the basis for revocation. These conditions were: (1) probationer may not leave Dade County without the prior consent of his probation supervisor; (2) probationer must submit written monthly reports; (3) probationer must pay $10 a month for cost of supervision; (4) probationer must make restitution payments at a minimum rate of $30 a month.
It is undisputed that the appellant left the county without the consent of his supervising probation officer. While this violation is technical in nature, it is sufficient to support revocation of probation. Lavazzoli v. State, 408 So. 2d 583, 584 (Fla. 3d DCA 1981), approved, 434 So. 2d 321 (Fla. 1983). It is also clear that the defendant failed to file any written report for two months. This is a substantial violation of the conditions of probation. Chappell v. State, 429 So. 2d 84 (Fla. 5th DCA 1983); Roth v. State, 406 So. 2d 121 (Fla. 2d DCA 1981); Aaron v. State, 400 So. 2d 1033, 1036 (Fla. 3d DCA) (Nesbitt, J. dissenting), pet. for review denied, 408 So. 2d 1095 (Fla. 1981).
Appellant does not dispute that he failed to make restitution payments and payments for the cost of supervision. However, there is no evidence in the record to prove that the appellant is currently capable of making the payments. Therefore, these two violations were not valid grounds for revoking probation. The state must prove that he was financially able to make the payments before failure to pay will warrant revoking probation. Smith v. State, 380 So. 2d 1175 (Fla. 4th DCA 1980).
In sum, one of the violations was technical, but a valid basis for revoking probation. The other valid basis for the revocation was a substantial violation. On these grounds, we affirm the order revoking probation. See Roth v. State (striking four violations from the order of revocation because the state did not sustain its burden of proof but affirming the order because the two remaining violations were substantial and warranted revocation). The remaining two violations were not valid reasons for the revocation, because the state failed to prove appellant’s ability to pay. These two violations must be stricken from the order of revocation. We remand to the trial court for reconsideration without regard to the two financial conditions which were violated. See Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980).
Affirmed in part, reversed in part, and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Smith v. State, 705 So. 2d 1033 (Fla. 3d DCA 1998)…ons directing Smith to submit a truthful public service schedule, to follow his supervisor’s instructions and to pay court costs. See Howard v. State, 484 So. 2d 1232 (Fla.1986); Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992); Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983). Therefore, that portion of the revocation order is reversed. However, as Smith concedes, the record supports the trial court’s finding that Smith violated his community control by failing to remain confined to his residence. Se…
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Higgs v. State, 470 So. 2d 75 (Fla. 3d DCA 1985)…culated recommended sentence under the guidelines. We find merit in both of these contentions. The finding in the order under review that appellant failed to pay supervision costs is stricken as being unsupported by the evidence. Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983). We note, however, that appellant does not challenge, and we shall not disturb, the revocation of probation, since it is supported by the showing of two additional substantial violations of probation. Edwards v. State, 439 So. 2d…
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Thomas v. State, 453 So. 2d 156 (Fla. 1st DCA 1984)…cannot make that determination here, and therefore remand for reconsideration. See Gammon v. State, 451 So. 2d 1042 (Fla. 1st DCA 1984); Haynes v. State; Bates v. State; Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983); and also Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983). REVERSED and REMANDED. MILLS and SHIVERS, JJ., concur.…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Aaron v. State, 400 So. 2d 1033 (Fla. 3d DCA 1981)
- Smith v. State, 380 So. 2d 1175 (Fla. 4th DCA 1980)
- Sand Dollar Villas Dev. Corp., Inc. v. Sand Dollar Villas Condo. Ass'n, Inc., 429 So. 2d 84 (Fla. 4th DCA 1983)
- Chappell v. State, 429 So. 2d 84 (Fla. 5th DCA 1983)
- Roth v. State, 406 So. 2d 121 (Fla. 2d DCA 1981)
- Terry v. State, 406 So. 2d 121 (Fla. 2d DCA 1981)
- Lavazzoli v. State, 408 So. 2d 583 (Fla. 3d DCA 1981)