EDWARD MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation where the state failed to prove the probationer had ability to pay financial obligations or adequately prove an untruthful signout.
Revocation of probation for nonpayment of restitution and supervision costs requires proof that the probationer had the ability to make the payments, and the state's failure to establish such ability renders revocation inappropriate.
[1] Revocation of probation for nonpayment of financial obligations requires proof that the probationer had the ability to make the payments.
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Join FLexlaw to unlock all legal intelligenceMurphy was placed on probation for two years for uttering a forged instrument and grand theft by fraud, with conditions including participation in a P…
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PER CURIAM.
Appellant was placed on probation for two years for uttering a forged instrument and grand theft by fraud. Conditions of his probation included participation in a Probation and Restitution Center for a maximum of four months, compliance with its rules, and payment of $158.00 as restitution. Revocation of probation was sought for nonpayment of restitution, costs of supervision or subsistence payments, as well as one untruthful signout. Appellant correctly notes that revocation for financial violations requires some showing that the probationer had' the ability to make the payments. Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977).
The only fact adduced at the hearing was that the appellant had failed to make payments. There was no demonstration of his ability to do so. Revocation based on the grounds of nonpayment was inappropriate. The only proof of the untruthful signout was equally inadequate. The subject revocation would result in this individual’s incarceration for two years; a burden to the taxpayers requiring justification by more than the present record.
Accordingly, we reverse.
GLICKSTEIN and WALDEN, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.
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Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)…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. State, 365 So. 2d 1067 (Fla. 2d DCA 1979). Section 948.06(4), Florida Statute (Supp. 1984),1 which went into effect June 24, [*1370] 1984, places the burden on the probationer “to prove by clear and convincing evidence…
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Doherty v. State, 448 So. 2d 624 (Fla. 4th DCA 1984)…ether Doherty had the ability to make restitution. I would reverse and remand with instructions to hold an evidentiary hearing as to whether Doherty has the ability to make restitution. Florida Rule of Appellate Procedure 9.140(g); Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983); Grimsley v. State, 408 So. 2d 1075 (Fla. 2d DCA 1982); Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). I do, therefore, respectfully dissent.…
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Costello v. State, 567 So. 2d 1032 (Fla. 4th DCA 1990)…aived the inability to pay as a defense in the plea. Based on that, he’s in violation of probation. (Emphasis added.) These findings cannot stand. First, there was no evidence to support the essential finding of an ability to pay. Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983). Moreover, while it is true that a probationer must affirmatively show in ability by clear and convincing evidence, section 948.06(4), appellant’s uncontrovert-ed testimony in this regard cannot arbitrarily totally be rejected; C…
Authorities Cited
- Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977)
- Baran v. State, 381 So. 2d 323 (Fla. 5th DCA 1980)