DENNIS B. GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court improperly revoked probation without sufficient evidence of the probationer's ability to pay supervision costs.
Dennis Gordon appealed an order revoking his probation for failing to pay supervision costs and failing to work diligently. The State conceded it lack…
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PER CURIAM.
Dennis Gordon appeals from an order revoking his probation. The order found that appellant violated two conditions of probation: first, by failing to pay $10.00 per month for the cost of supervision; and second, by failing to work diligently at a lawful occupation. We reverse.
Initially, we note that the State recognized its failure to present any evidence concerning the allegation of violation of probation by failing to work at a lawful occupation. Thus the trial court improperly revoked appellant's probation based on that allegation. We turn next to the allegation of violation of probation for failure to pay supervision costs.
In order to revoke probation for failure to pay supervision costs “[t]here must ... be a sufficient demonstration of probationer’s ability to pay and a specific finding by the court regarding that ability to pay.” Kimble v. State, 39(5 So. 2d 815, 817 (Fla. 4th DCA 1981); Smith v. State, 380 So. 2d 1175 (Fla. 4th DCA 1980). We find the proof in this case, as we have found in many other appeals involving this point, wholly inadequate to establish appellant’s financial ability to make payments. If the State elects to proceed on this point then it should be prepared to offer the evidence necessary to establish the probationer’s ability to make the payments. The State’s failure to meet its burden causes additional work for both the Attorney General’s office and this court, which otherwise would have been unnecessary.
Accordingly, we reverse the order revoking appellant’s probation.
REVERSED.
DOWNEY, HURLEY and DELL, JJ., concur.
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Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)…n 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. State, 365 So. 2d 1067 (Fla. 2d DCA 1979). Section 948.06(4), Florida Statute (Supp. 1984),1 which went into effe…
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Johnson v. State, 698 So. 2d 909 (Fla. 4th DCA 1997)…sly held that “[i]n order to revoke probation for failure to pay supervision costs ‘[t]here must ... be a sufficient demonstration of probationer’s ability to pay and a specific finding by the court regarding that ability to pay.’ ” Gordon v. State, 448 So. 2d 76 (Fla. 4th DCA 1984) (quoting Kimble v. State, 396 So. 2d 815, 817 (Fla. 4th DCA 1981))(emphasis added). Accordingly, we remand to permit the trial court to enter a specific finding regarding appellant’s ability to pay his probationary fees and costs…
Authorities Cited
- Smith v. State, 380 So. 2d 1175 (Fla. 4th DCA 1980)