JOE HAYWARD ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joe Robinson appeals the revocation of his probation. The court affirms the revocation but strikes three findings from the revocation order: the supervisory fee violation (lack of proof of ability to pay), the probation officer instruction violation (no oral finding at hearing), and the trespass conviction (judge explicitly excluded it). The battery conviction alone provides sufficient grounds for revocation.
The court affirms the probation revocation but strikes three findings from the order as legally insufficient: (1) the supervisory fee violation finding is stricken because there was no evidence of Robinson's ability to pay; (2) the probation officer instruction violation is stricken because the judge failed to pronounce an oral finding at the hearing; and (3) the trespass violation is stricken because the judge explicitly excluded it from consideration. The battery conviction alone constitutes sufficient grounds for revocation.
[1] A finding of probation violation based on failure to pay a supervisory fee is unsupported where the record lacks evidence of the probationer's ability to pay.
[2] A written order of revocation must conform to the trial court's oral pronouncement of findings at the revocation hearing.
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Join FLexlaw to unlock all legal intelligence“This finding must be stricken from the order because the trial judge had no evidence before him upon which to review the financial resources of appellant and the nature of the burden that payment of the fee would impose upon appellant. Thus there was no proof before the court that appellant had the ability to pay his supervisory fee.”
Establishes the requirement that probation fee violations must be supported by evidence of the probationer's ability to pay
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Join FLexlaw to unlock all legal intelligenceRobinson was on probation subject to various conditions, including: (1) payment of $10 monthly supervisory fees; (2) compliance with probation officer…
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DANAHY, Judge.
Appellant appeals the revocation of his probation. We affirm the revocation order as modified.
One finding in the written order of revocation holds that appellant violated condition (2) requiring that he pay $10.00 per month as a supervisory fee. This finding must be stricken from the order because the trial judge had no evidence before him upon which to review the financial resources of appellant and the nature of the burden that payment of the fee would impose upon appellant. Thus there was no proof before the court that appellant had the ability to pay his supervisory fee. Raines v. State, 445 So. 2d 408 (Fla. 2d DCA 1984); Brown v. State, 429 So. 2d 821 (Fla. 2d DCA 1983); Hines v. State, 420 So. 2d 926 (Fla. 2d DCA 1982); Sillett v. State, 393 So. 2d 53 (Fla. 2d DCA 1981); Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979).
Another finding in the written order of revocation recites that appellant violated condition (8) requiring that he comply with all instructions given to him by his probation officer. That basis for revocation must also be stricken because at the revocation hearing the trial judge failed to pronounce a finding that appellant had violated condition (8). The written order must conform to the oral pronouncement. Brown; Towson v. State, 382 So. 2d 870 (Fla. 5th DCA 1980); Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979).
The third finding in the order of revocation holds that appellant violated condition (5) requiring that he live at liberty without violating any law in that he had been convicted of the crimes of trespass and battery. The finding with regard to trespass must be stricken because at the revocation hearing the trial judge “specifically exclude[d] the trespass from consideration as a basis for revocation.” Appellant’s conviction for battery, however, is sufficient, competent evidence to support the trial judge’s finding that appellant violated condition (5). Appellant’s violation of condition (5) on this ground alone constitutes a material and substantial violation of his probation which warrants revocation. On this record we are satisfied that the trial judge was prepared to revoke appellant’s probation for a violation of condition (5) based on the battery conviction alone. Therefore, we affirm the order revoking appellant’s probation. Raines; Brown; Sillett; Sampson.
Accordingly, this cause is remanded for correction of the order of revocation. Otherwise, the order is affirmed.
GRIMES, A.C.J., and LEHAN, J., concur.
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Morris v. State, 727 So. 2d 975 (Fla. 5th DCA 1999)…nces from it are sufficient to establish by a preponderance of the evidence that Morris [*977] committed battery and resisted arrest without violence. Thus we conclude the violation of probation determination should be upheld. See Robinson v. State, 468 So. 2d 1106 (Fla. 2d DCA 1985). As supplemental authority, Morris has submitted a copy of his acquittal on the battery charge arising out of this incident. That, however, is not determinative in this case. An acquittal in a criminal ease does not preclude the…
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Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990)…al court made no such express oral findings at the revocation hearing. It is well settled that the written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge. Robinson v. State, 468 So. 2d 1106 (Fla. 2d DCA 1985). Because the trial judge did not make express oral findings that Harrington violated her probation by using cocaine and by failing to follow the instructions of her probation officer, those parts of Harrington’s order of revocatio…
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Morganti v. State, 498 So. 2d 557 (Fla. 4th DCA 1986)…use to the trial court with instructions to correct the order by striking the violations for failure to pay costs of supervision, failure to submit to evaluation for counseling and for failure to pay the public defender’s fee. See Robinson v. State, 468 So. 2d 1106 (Fla. 2d DCA 1985); Towson v. State, 382 So. 2d 870 (Fla. 5th DCA 1980). When the trial court sentenced appellant as an habitual offender, a conflict existed among the district courts of appeal concerning the relationship between the sentencing gui…
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
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Sterling Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)
- Brown v. State, 429 So. 2d 821 (Fla. 2d DCA 1983)
- Towson v. State, 382 So. 2d 870 (Fla. 5th DCA 1980)
- Alphonso Williams v. State, 445 So. 2d 408 (Fla. 2d DCA 1984)
- Sillett v. State, 393 So. 2d 53 (Fla. 2d DCA 1981)
- Hines v. State, 420 So. 2d 926 (Fla. 2d DCA 1982)