VICTORIA LYNN BOYINK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Victoria Lynn Boyink appealed an order revoking her probation and sentencing her to 364 days incarceration after she pleaded guilty to resisting an officer without violence. The court affirmed the revocation but modified the order to delete findings related to her failure to pay monetary assessments, holding that the trial court must make affirmative findings regarding financial ability before imposing such obligations.
The probation revocation was affirmed but modified. While Boyink's transportation problems did not constitute an adequate defense (unlike those in Shaw v. State), the trial court erred by failing to make affirmative findings regarding Boyink's financial ability to pay before ordering revocation based on failure to pay costs and fees. The order of revocation was affirmed but modified by deleting any reference to failure to pay costs and other monetary assessments.
[1] A probationer's failure to submit timely monthly reports is not a willful violation if unrebutted evidence shows the probationer lacked transportation and was required to…
[2] A trial court must make an affirmative finding that a probationer is financially able to pay the costs of supervision and other statutory fees before revoking probation f…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Failure to submit timely reports under these circumstances was not a willful violation of probation.”
Establishing the standard that probation violations based on failure to perform duties must be willful and that extenuating circumstances like lack of transportation can be a valid defense under Shaw v. State.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBoyink pleaded guilty to resisting an officer without violence and was placed on probation for one year. On March 22, 1984, she was charged with viola…
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WILLIS, BEN C. (Ret.) Associate Judge.
An appeal from an order revoking appellant’s probation and sentencing her to 364 days incarceration with credit for time served. We affirm as modified. .
Appellant pled guilty to a charge of resisting an officer without violence and was placed on probation for 1 year. On March 22, 1984, she was charged with violating several conditions of probation, namely failing to submit her monthly reports in a timely manner, failing to pay court costs, failing to perform public service hours, and several other counts relating to failure to pay statutory fees. At the probation revocation hearing, appellant’s probation officer testified that appellant had been late in filing reports, or had failed to file them altogether, had done only sporadic public service work, and had failed to pay her monthly statutory fees. Appellant testified that she had transportation problems which prevented her from filing her reports. She also testified that for at least a portion of her probation period, she had a job which paid $3.35 a hour for 39 hours a week. At the end of the hearing, the judge found her in violation of probation, and at a later sentencing hearing ordered her incarcerated for 364 days with credit for time served.
Appellant contends that she was unable to meet her various obligations because she had transportation problems. She relies on Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980), where a probationer was required to deliver his monthly report personally a great distance away. Unre-futed evidence in that case showed that the probationer completed the report timely, but had no transportation. Failure to submit timely reports under these circumstances was not a willful violation of probation. Id. The present case shows no such extenuating circumstances. The appellant was not required to personally deliver her reports. In addition, the record does not disclose that her transportation problems arose to the level of those in Shaw.
Appellant next contends that the trial court erred in failing to make an affirmative finding that she was financially able to pay the cost of supervision and other statutory fees. We agree. Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978). However, in view of the clear violations which were not defensible, the order of revocation is affirmed but modified by deleting any reference to appellant’s failure to pay costs and other monetary assessments. Smeltz v. State, 396 So. 2d 811 (Fla. 5th DCA 1981). It is so ordered.
AFFIRMED.
BOOTH, C.J., and ZEHMER, J., concur.
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Citator
Cited By
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Rojas v. State, 484 So. 2d 629 (Fla. 3d DCA 1986)…heless, in view of the three remaining bases for revocation, which undisputedly were established, the order of revocation is affirmed but modified by deleting any reference to the defendant’s failure to pay the monetary assessments. Boyink v. State, 480 So. 2d 210 (Fla. 1st DCA 1985).…
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Ryan v. State, 486 So. 2d 49 (Fla. 1st DCA 1986)…inancial condition both at the time the probation order was entered and at the present time. In the instant case, we do not remand for reconsideration of the revocation order as appellant’s revocation is supported by ample evidence. Boyink v. State, 480 So. 2d 210 (Fla. 1st DCA 1985). However, remand is necessary for the ministerial function of correcting the written order so that it comports with the court’s oral pronouncement regarding condition three. Accordingly, the order is remanded for correction o…
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McDONALD v. State, 892 So. 2d 1228 (Fla. 1st DCA 2005)
Authorities Cited
- Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)
- Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978)
- Smeltz v. State, 396 So. 2d 811 (Fla. 5th DCA 1981)
- Williams v. Corbett Cranes, Inc., 396 So. 2d 811 (Fla. 5th DCA 1981)