JOHNNIE HAYNES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Haynes Jr. appealed the revocation of his probation, challenging the trial court's findings of multiple violations. The appellate court reversed and remanded, finding that three of the five alleged violations were improper or unsupported by adequate findings, while two violations were valid but required reconsideration in light of the erroneous counts.
The court held that counts 3 and 5 were improper because the trial court failed to make a specific finding that defendant had the ability to pay court costs; count 4 was improper because the probation officer lacked authority to impose a new condition of probation requiring defendant not to visit his wife's house; and counts 1 and 2 were properly found. The case was remanded for the trial court to redetermine whether it would have revoked probation absent the three erroneous counts.
[1] A trial court cannot find a probationer in violation for failure to pay court costs without making a specific finding that the probationer had the ability to pay.
[2] A probation officer's instruction that amounts to a new condition of probation, rather than a routine supervisory direction, is beyond the officer's authority to prescrib…
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Join FLexlaw to unlock all legal intelligence“Although the trial court impliedly found that defendant violated his probation by failing to pay court costs, the trial court made no specific finding that defendant had the ability to pay the court costs.”
Establishes that revocation based on failure to pay requires explicit finding of ability to pay
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Join FLexlaw to unlock all legal intelligenceDefendant was on probation and was charged with five violations: (1) changing residence without consent; (2) failing to notify probation officer of jo…
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THOMPSON, Judge.
Defendant appeals the order revoking his probation and argues that the trial court erred in finding a violation of probation as to several counts listed in the affidavit of violation of probation. We reverse and remand.
Counts 3 and 5 of the affidavit of violation of probation alleged that defendant failed to pay court costs as he had been instructed to do by his probation officer and as required in the order of probation. Although the trial court impliedly found that defendant violated his probation by failing to pay court costs, the trial court made no specific finding that defendant had the ability to 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 officer was not a routine supervisory direction but essentially amounted to a new condition of probation which a probation officer is without authority to prescribe. See generally Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983); Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982). Accordingly, the trial court erred in impliedly finding that defendant violated his probation as alleged in Count 4 of the affidavit.
Count 2 of the affidavit alleged that contrary to his probation officer’s instructions, defendant failed to notify his probation officer that he lost his job. This instruction by the probation officer was a routine supervisory direction. As noted in Hutchinson, the violation of a supervisory direction given by a probation officer may be a proper ground for revocation of probation, although the direction has not been specifically approved by the trial court. . The evidence supports the implied finding that defendant violated his probation as alleged in Count 2 of the affidavit. The record also supports the implied finding that defendant violated his probation as alleged in Count 1 of the affidavit by changing his residence without procuring the consent of his probation officer. Although the evidence supports the implied findings that defendant violated his probation as alleged in Counts 1 and 2 of the affidavit, we are unable to determine whether the trial court would have revoked defendant’s probation and imposed the same sentence without the violations alleged in Counts 3, 4, and 5 of the affidavit. Accordingly, we remand this ease to the trial court for a redetermination of these matters. See Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983); Watts v. State, 410 So. 2d 600 (Fla. 1st DCA 1982).
ERVIN, C.J., and NIMMONS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…finding that a defendant has the ability to pay, probation cannot be revoked based on the failure to pay court costs. Kennedy v. State, 460 So. 2d 590 (Fla. 2d DCA 1984). See also Neves v. State, 502 So. 2d 1343 (Fla. 2d DCA 1987); Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983); Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981). In the case at bar, the only evidence presented regarding appellant’s ability to pay was his probation officer’s statement that she believed appellant was working several mon…1 / 2
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Brown v. State, 537 So. 2d 180 (Fla. 3d DCA 1989)…With respect to the failure to pay supervisory costs, absent a finding that a defendant has the ability to pay, probation cannot be revoked based on the failure to pay costs. McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988); Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983). Here, the trial court made no such specific finding. Where there is evidence in the record to support a finding of ability to pay, it is appropriate to remand for the purpose of permitting the trial court to make such a determin…
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Miller v. State, 958 So. 2d 981 (Fla. 2d DCA 2007)…0, 30 (Fla. 5th DCA 1997). Thus, for example, a probation officer may require a probationer to notify the probation officer when he loses his job because this direction simply effectuates the conditions already imposed by the court. Haynes v. State, 440 So. 2d 661, 662 (Fla. 1st DCA 1983). However, an instruction that essentially imposes a new condition of probation is not a routine supervisory direction and [*985] cannot support a finding that the probationer is in violation. Id. For example, in Haynes, the…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Denver Jesse Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983)
- Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982)
- Kenton Anthony Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)
- Murphy v. Town OF Palm Beach, 406 So. 2d 50 (Fla. 4th DCA 1981)
- Winfield v. State, 406 So. 2d 50 (Fla. 1st DCA 1981)
- Watts v. State, 410 So. 2d 600 (Fla. 1st DCA 1982)
- Young v. State, 399 So. 2d 1082 (Fla. 1st DCA 1981)