JOHN JAMES COSTELLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this probation revocation case, the Florida Fourth District Court of Appeal reversed the trial court's revocation of appellant's probation for failure to pay restitution, holding that the trial court failed to make adequate findings regarding the appellant's ability to pay and whether he had waived the inability-to-pay defense.
The probation revocation must be reversed because the trial court's findings that the appellant had the ability to pay and had waived the inability-to-pay defense were not supported by evidence in the record. The case is remanded for a full determination of whether there was a valid waiver of the inability defense at the original sentencing, or if not, whether the appellant possesses the ability to pay.
[1] A trial court's finding of a probationer's ability to pay restitution must be supported by evidence.
[2] A probationer's uncontroverted testimony regarding inability to pay cannot be arbitrarily rejected without contrary evidence.
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 intelligence“First, there was no evidence to support the essential finding of an ability to pay. Murphy v. State, 442 So.2d 1047 (Fla. 4th DCA 1983). Moreover, while it is true that a probationer must affirmatively show in ability by clear and convincing evidence, section 948.06(4), appellant's uncontrovert-ed testimony in this regard cannot arbitrarily totally be rejected”
Establishes that trial courts cannot arbitrarily reject a probationer's uncontroverted testimony regarding inability to pay, and that findings on ability to pay must be supported by evidence in the record.
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Join FLexlaw to unlock all legal intelligenceAppellant Costello was placed on probation with a condition requiring him to pay $170,000 in restitution with legal interest ($30,000 within 90 days, …
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McNULTY, JOSEPH P., Associate Judge.
This is a violation of probation case in which appellant appeals the revocation of his probation for failure to pay the restitution imposed as a condition thereof. We reverse.
Appellant was the sole witness at the revocation hearing at which his only defense was his inability to pay.1 Needless to say, therefore, that while appellant admitted his failure to pay [thus obviating the burden on the state to establish it pursuant to section 948.06(4), Florida Statutes (1989) ], all the evidence was in support of that defense.
Notwithstanding, the trial court expressly held:
I find an actual violation of probation. I find no question about his ability to pay more than he’s paid, and as a matter of fact, I find he waived the inability to pay as a defense in the plea. Based on that, he’s in violation of probation. (Emphasis added.)
These findings cannot stand.
First, there was no evidence to support the essential finding of an ability to pay. Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983). Moreover, while it is true that a probationer must affirmatively show in ability by clear and convincing evidence, section 948.06(4), appellant’s uncontrovert-ed testimony in this regard cannot arbitrarily totally be rejected; Cf. Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977), and here, there is nothing in the record to support a conclusion that appellant ought not be believed.
Secondly, the state concedes that there was no evidence to support the finding that at the time of the order of probation there was a waiver, within the purview of Brushingham v. State, 460 So. 2d 523 (Fla. 4th DCA 1984), of the inability-to-pay defense. That finding must therefore also fall.
On the latter point, the state’s reliance on Doherty v. State, 448 So. 2d 624 (Fla. 4th DCA 1984), in support of its apparent contention that there was an implied if not express waiver here, is misplaced. That case is inapposite at least in that there the defendant at sentencing, in an effort to avoid state prison sanctions, expressly requested the court to accept his offer to make restitution (thus the “condition” of restitution was not court imposed) and further expressly acknowledged that whether he was able to raise the money or not would be irrelevant. An “implied” waiver — though not so called in that case— could well have been demonstrated. But here, no such demonstration can be made since there was no evidence at all on the point except that it nakedly appears appellant knew “he would go to jail” if he failed to make restitution. This falls far short of supporting an “implied” waiver — if there is such a thing — especially in the light of Brushingham. In sum, the revocation of probation hearing in this case was a non-hearing. The resultant order on review is therefore reversed and the cause is remanded for a full and complete determination of whether there was a waiver of the inability defense at the time of the original plea or, if not, whether appellant has the ability to pay. Cf. Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980), and Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976).
DOWNEY and LETTS, JJ., concur. . The restitution ordered was $170,000, with legal interest, payable $30,000 within 90 days, the balance ($140,000) to be paid within 3 years.
Cases With Similar Vibessemantic neighbors from the corpus
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Rodriguez v. State, 653 So. 2d 493 (Fla. 3d DCA 1995)…e trial court’s finding of an “ability to pay” some restitution to the victim in revoking appellant’s probation. Manies v. State, 621 So. 2d 679 (Fla. 2d DCA 1993); see also George v. State, 577 So. 2d 996 (Fla. 1st DCA 1991). See Costello v. State, 567 So. 2d 1032 (Fla. 4th DCA 1990). We therefore vacate the July 7, 1994, order revoking probation and adjudicating appellant guilty, and direct the trial court to withhold adjudication of guilt and continue in accordance with the terms of the appellant’s plea to…
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Willis v. State, 141 So. 3d 611 (Fla. 4th DCA 2014)…to jobs outside of his hometown. The state did not present any evidence to refute appellant’s testimony, and the evidence presented was insufficient to show that appellant did not make a bona fide effort to obtain employment. See Costello v. State, 567 So. 2d 1032, 1033 (Fla. 4th DCA 1990) (finding that appellant’s uncontroverted testimony regarding his inability to pay “cannot arbitrarily totally be rejected” where “there is nothing in the record to support a conclusion that appellant ought not be believed”)…
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King v. State, 835 So. 2d 1271 (Fla. 4th DCA 2003)…idence in the record to support the finding that King’s failure to make restitution payments was willful. King’s testimony that he only earned $200 a week and could not find employment to supplement his income was uncontested. See Costello v. State, 567 So. 2d 1032, 1033 (Fla. 4th DCA 1990)(probationer’s uncontested testimony regarding his inability to pay cannot arbitrarily and totally be rejected). This testimony was confirmed by the probation officer’s testimony that she did not believe King had the ability…
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
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)
- Clemons v. State, 388 So. 2d 639 (Fla. 2d DCA 1980)
- Doherty v. State, 448 So. 2d 624 (Fla. 4th DCA 1984)
- Freiberger v. State, 343 So. 2d 57 (Fla. 4th DCA 1977)
- Brushingham v. State, 460 So. 2d 523 (Fla. 4th DCA 1984)
- Murphy v. State, 442 So. 2d 1047 (Fla. 4th DCA 1983)