CHRISTINE THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that AFDC payments should not be considered when assessing a defendant's present financial ability to pay restitution. The trial court erred in finding a probation violation based on failure to pay restitution from AFDC funds.
[1] Payments received under the Aid to Families with Dependent Children (AFDC) program cannot be considered by a trial court in its assessment of a defendant's present abilit…
[2] Requiring restitution payments from funds earmarked for the support and care of a defendant's children jeopardizes the welfare of those children and frustrates legislativ…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellant was convicted of public assistance fraud and placed on probation with a restitution requirement. An affidavit alleged various violations, in…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Restitution cases and more on FLexlaw
WIGGINTON, Judge.
This appeal is before us from the trial court’s order revoking appellant’s probation. Appellant raises the sole issue of whether the state adequately proved that she had the present financial ability to make restitution. For the reasons stated below, we answer that question in the negative and reverse and remand for further consideration.
Pursuant to a guilty plea, appellant was convicted of public assistance fraud and placed on four years probation. One of the conditions of her probation was to pay $720 in restitution.
An affidavit of violation of probation was subsequently filed alleging that appellant violated her probation by failing to file reports; by allegedly shoplifting items from a department store; by failing to follow the instructions of her probation officer; and by failing to make any restitution payments, thereby violating conditions (1), (5) and (8), and special condition (9) of the probation order, respectively. At the revocation hearing, appellant’s probation officer testified that appellant’s sole source of income was derived from monthly payments of $223 from the Aid to Families with Dependent Children Program (AFDC), and food stamps valued at $214. Appellant testified that she has three children. The state produced no other evidence concerning appellant's financial status.
The trial court concluded that the evidence was insufficient from which to find a violation of probation based on the shoplifting count, but did find that appellant had violated the other conditions as alleged, specifically finding that appellant had the ability to pay. The court revoked probation and sentenced appellant to ten months in the county jail.
Although the trial court arguably made the specific determination of appellant’s ability to make restitution payments as was contemplated by this Court in Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978), it can only be concluded that the court did so by considering appellant’s receipt of the AFDC monies and the food stamps. In M.P. v. State, 443 So. 2d 482 (Fla. 2d DCA 1984), the second district unequivocally held that payments received under the AFDC program should not be considered by the trial court in its assessment of present ability to comply with a court’s restitution order. The second district reasoned:
Diversion of such public-assistance payments to satisfy appellant’s pre-existing restitution obligation would, of course, frustrate the legislative intent and purpose underlying the need for such financial assistance. See §§ 409.235, .185, Florida Statutes (1981).
Id. We adopt the second district’s holding and reasoning as our own. We also note that such conclusion is consistent with the legislative mandate embodied in section 775.089(2), Florida Statutes (1983), that, in determining the amount and method of payment of restitution, the trial court shall consider not only the financial resources of the defendant, but “the burden the payment of restitution will impose on the defendant,” as well (emphasis added). Clearly, requiring appellant to make restitution from funds earmarked for the support and care of her three children would jeopardize the welfare of innocents. We cannot countenance such a result. Accordingly, we hold the trial court erred in finding that appellant violated condition (9) of her probation order. Nevertheless, the trial court’s finding that appellant violated conditions (1) and (8) still stands. Both the failure to file reports and the failure to follow the probation officer’s supervisory instructions, though technical, are valid grounds for revoking probation. Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983); Bates v. State, 424 So. 2d 927 (Fla. 1st DCA 1983); Chappell v. State, 429 So. 2d 84 (Fla. 5th DCA 1983); Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983). However, where a portion of the revocation order is reversed and the violation or violations stricken as invalid grounds for revocation, but the remainder of the order is affirmed, we have traditionally remanded for reconsideration where we cannot determine from the record whether the trial court would have revoked probation and imposed the same sentence on the remaining grounds. We 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…report to his probation officer as ordered. Failure to file monthly reports is a substantial violation of probation sufficient by itself to support revocation of probation. Warren v. State, 499 So. 2d 55 [*1099] (Fla. 4th DCA 1987); Thomas v. State, 453 So. 2d 156 (Fla. 1st DCA 1984); Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979). Here, the evidence established that appellant failed to report to his probation officer as ordered. His probation officer testified that appellant filed late reports to her in…
-
Octavius D. Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011)…because it is clear from the record that the trial court would have revoked Appellant’s probation and imposed the same sentence based solely on the domestic battery offense, which was supported by sufficient evidence.* Cf. Thomas v. [*1075] State, 453 So. 2d 156, 157 (Fla. 1st DCA 1984) (explaining that when a portion of a probation order is reversed, the court will remand for reconsideration if it cannot be determined from the record that the trial court would have revoked probation and imposed the same se…
-
Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994)…termine from the record whether the trial court would have revoked community control and imposed the same sentence based solely on the remaining three valid grounds, we reverse the order of revocation and remand for reconsideration. Thomas v. State, 453 So. 2d 156 (Fla. 1st DCA 1984); Gammon v. State, 451 So. 2d 1042 (Fla. 1st DCA 1984). Condition (8) of the terms of community control required Appellant to comply with all instructions given by her supervising officer. Two violations were alleged under this c…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Denver Jesse Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983)
- Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983)
- Kenton Anthony Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)
- Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983)
- M.P. v. State, 443 So. 2d 482 (Fla. 2d DCA 1984)
- 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)
- Shabsels v. Moskowitz, 451 So. 2d 1042 (Fla. 3d DCA 1984)
- Bates v. State, 424 So. 2d 927 (Fla. 1st DCA 1983)