DALE DOUGLAS WORD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Dale Word appeals the revocation of his probation, challenging both the trial court's finding that he violated restitution requirements and the discrepancy between the court's oral pronouncement and written order. The court affirms the restitution-based revocation but reverses and remands regarding the written order to conform it to the oral ruling.
The burden is on the defendant to demonstrate by clear and convincing evidence that he lacks the ability to pay restitution once the state shows failure to make ordered payments. Word's excuse fell short of this standard, so the revocation was proper. However, the written order must conform to the oral pronouncement, requiring remand for entry of a corrected order.
[1] Once the state makes an initial showing that a probationer failed to make ordered restitution, the burden shifts to the defendant to demonstrate by clear and convincing e…
[2] A trial court's written order revoking probation must conform to its oral pronouncements made at the revocation hearing.
Previewing 2 of 2 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“Once the state makes an initial showing that the probationer failed to make ordered restitution, the burden is on the defendant to demonstrate by clear and convincing evidence that he does not have the ability to pay.”
Establishes the legal standard for burden of proof in restitution violations; rejects Word's argument that the state bore the burden.
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Join FLexlaw to unlock all legal intelligenceWord was placed on probation with a condition to make restitution to his victim. He made only one payment of half the ordered amount and failed to pay…
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BASKIN, Judge.
Appellant Word contests the trial court’s order revoking probation. As one of the conditions of his probation, Word was ordered to make restitution to his victim. Word made only one payment to the victim, paying half the ordered amount. He failed to pay any other restitution, although each month he told his probation officer that he had income varying from $300 to $600. His probation officer testified that Word told her that he did not make restitution because the victim’s insurance paid her bills.
The state filed an affidavit charging Word with violation of probation. The affidavit alleged that Word violated the terms of his probation by (1) changing residence without permission; (2) failing to make monthly reports; (3) failing to work diligently at a lawful occupation; (4) failing to report to his probation officer; and (5) failing to make restitution payments. At the revocation hearing, Word’s probation officer was the only witness. She testified concerning Word’s representations of his earnings and his stated reasons for failing to make restitution. The trial court announced that it was revoking Word’s probation solely because of the failed restitution; however, the court’s written order set forth all the grounds listed in the state’s affidavit as the basis for revocation. Word contends that the trial court committed error by failing to require the state to show that Word was financially able to make restitution, and by issuing an order that did not conform to the trial court’s oral pronouncement. We affirm in part and reverse in part.
Word’s assertion that the state had the burden of showing his ability to pay restitution is without merit. Once the state makes an initial showing that the probationer failed to make ordered restitution, the burden is on the defendant to demonstrate by clear and convincing evidence that he does not have the ability to pay. Clark v. State, 510 So. 2d 1202 (Fla. 2d DCA 1987); Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986); Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985); § 948.06(4), Fla.Stat. (1985). Applying that principle to the facts before us, we find no error in the trial court’s revocation of Word’s probation. Word’s excuse for failing to pay fell short of the standard.
Word also argues that the trial court’s written order failed to conform to the court’s pronouncements at the revocation hearing. A trial court’s written order must conform to the court’s oral pronouncements. Williams v. State, 525 So. 2d 458 (Fla. 2d DCA 1988). We, therefore, reverse and remand for entry of an order in conformity with the trial court’s oral rulings at the revocation hearing.
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR ENTRY OF AN APPROPRIATE ORDER.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ladon Maurice Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993)…show by clear and convincing evidence that he or she did not have the ability to pay. Morgan v. State, 491 So. 2d 326, 327 (Fla. 1st DCA 1986); Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA), review denied, 576 So. 2d 287 (Fla.1990); Word v. State, 533 So. 2d 893 (Fla. 3d DCA 1988). Any probation violation sufficient to trigger revocation “must be substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.” Johnson v. State, 561 So. 2d 1254, 1…
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McQUITTER v. State, 622 So. 2d 590 (Fla. 1st DCA 1993)…ner to demonstrate by clear and convincing evidence that he or she lacked the ability to pay. § 948.06(4), Fla.Stat.(1989); Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986); Bass v. State, 473 So. 2d 1367, 1370 (Fla. 1st DCA 1985); Word v. State, 533 So. 2d 893 (Fla. 3d DCA 1988). Since inability to pay is a defense which the probationer must prove, if the probationer offers no evidence on the issue, the court’s failure to make a specific finding can be considered harmless. Guardado v. State, 562 So. 2d 69…
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Blackwelder v. State, 902 So. 2d 905 (Fla. 2d DCA 2005)…roposition that once the State makes an initial showing that the probationer failed to pay court-ordered costs, the burden shifts to the probationer to prove by clear and convincing evidence that he lacked the ability to pay. See also Word v. State, 533 So. 2d 893 (Fla. 3d DCA 1988). However, section 948.06(5), despite its plain language, cannot relieve the State of its burden to prove that the violation was willful by proving the probationer’s ability to pay. Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004)…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 510 So. 2d 1202 (Fla. 2d DCA 1987)
- Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)
- Williams v. State, 525 So. 2d 458 (Fla. 2d DCA 1988)
- Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986)