ROBERT LEE MACK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation based on failure to pay supervision costs where appellant's ability to pay was not established, but affirmed revocation based on failure to file reports and report in person, remanding for resentencing.
Probation cannot be revoked for failure to pay supervision costs without proof that the probationer had the ability to pay.
[1] Probation may not be revoked for failure to pay supervision costs absent evidence that the probationer had the ability to pay such costs.
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was revoked by the trial court for three reasons: failure to file monthly reports, failure to report in person to the probation …
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PER CURIAM.
Appellant’s probation was revoked for failure to file monthly reports, failure to report in person to the probation officer, and failure to pay the costs of probation supervision.
It is appellant’s contention in this appeal that the trial court erred in revoking his probation for failure to pay supervision costs where there was no proof of the indigent appellant’s ability to pay for such costs. We agree that failure to pay costs of supervision should not have been considered as one of the grounds for revocation since there is no showing in the record that the appellant was able to pay such costs. Deason v. State, 404 So. 2d 1140 (Fla. 4th DCA 1981); Murrell v. State, 364 So. 2d 96 (Fla. 4th DCA 1978); Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978).
It is clear that the court did not err in revoking appellant’s probation on the other grounds charged. However, since we do not know if the trial judge would have imposed the same sentence had he not considered appellant’s failure to pay the costs of supervision, we reverse the sentence and remand for resentencing without taking this factor into consideration. Secure v. State, 432 So. 2d 630 (Fla. 3d DCA 1983).
Affirmed in part and reversed in part and remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hamrick v. State, 519 So. 2d 81 (Fla. 3d DCA 1988)…tion on the ground that he failed to make the restitution which was a condition of probation. The trial judge entered this order without determining, as required, that the defendant could make the payments but willfully did not do so, Mack v. State, 440 So. 2d 602 (Fla. 3d DCA 1983); Smith v. State, 373 So. 2d 76 (Fla. 3d DCA 1979); Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978), because, when the probation was imposed, Hamrick had specifically agreed to make restitution regardless of his ability to pay.…
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Cohen v. State, 171 So. 3d 179 (Fla. 3d DCA 2015)…bation has been revoked based on charged and uncharged conduct, the revocation order must be reversed where it is unclear whether the lower court would have revoked probation and imposed the same sentence absent the uncharged conduct. Mack v. State, 440 So. 2d 602 (Fla. 3d DCA 1983). In the instant case, however, it is clear from the record that the trial court would have revoked Cohen’s probation and imposed the same sentence based solely on the charged violation of making an obscene phone call under section…
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Cheatham v. State, 751 So. 2d 751 (Fla. 3d DCA 2000)…ther the trial court would have revoked Defendant’s probation and given him the same sentence absent the violation” of the conditions not alleged in the affidavit. Largaespado v. State, 658 So. 2d 189, 189 (Fla. 3d DCA 1995); see also Mack v. State, 440 So. 2d 602 (Fla. 3d DCA 1983). Accordingly, we reverse and remand with directions to the trial court to reconsider the revocation of probation and the sentence imposed considering only those violations charged in the affidavit, and to enter a sentencing scor…
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
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)
- Secure v. State, 432 So. 2d 630 (Fla. 3d DCA 1983)
- Keelan T. Murrell v. State, 364 So. 2d 96 (Fla. 4th DCA 1978)
- Deason v. State, 404 So. 2d 1140 (Fla. 4th DCA 1981)