ANTHONY LEVINE HAYNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Levine Haynes appeals a revocation of his probation and community control imposed after a violation hearing. The court affirms that Haynes violated certain conditions of community control but reverses the trial court's findings regarding violations for nonpayment and failure to complete a sex offender program, and remands for proper entry of the revocation order and resentencing using correct sentencing guidelines.
The court held that Haynes properly violated conditions concerning failure to remain confined to his approved residence and failure to report to his community control officer, but the trial court erred in finding violations based on nonpayment of costs and failure to complete a sex offender program. The court also held the trial court erred in scoring a prior offense in the sentencing guidelines calculation.
[1] A probation or community control revocation based on nonpayment of financial obligations requires proof that the probationer had the ability to make the payments.
[2] A probation or community control condition requiring completion of a program is not violated if the condition lacks specificity regarding timing and other details.
Previewing 2 of 6 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“In order to revoke community control or probation on the basis of nonpayment of costs, fines, or restitution, it is necessary to present sufficient evidence to support a finding that the probationer had the ability to make the financial payments required of him.”
Establishes the legal standard for revocation based on nonpayment, requiring proof of ability to pay
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Join FLexlaw to unlock all legal intelligenceOn September 2, 1987, Haynes was sentenced to one year of community control followed by nine years of probation for attempted sexual battery and aggra…
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SCHOONOVER, Chief Judge.
The appellant, Anthony Levine Haynes, challenges a trial court finding that he violated the terms and conditions of his probation and community control and the judgments and sentences imposed upon him as a result of that finding. We hold that the court properly found that the appellant violated the terms and conditions of community control, but remand for the entry of a proper order and for resentencing.
On September 2, 1987, the appellant was sentenced to two concurrent sentences of one year on community control to be followed by nine years of probation for the offenses of attempted sexual battery and aggravated battery.
On January 28, 1988, affidavits were filed charging the appellant with violating his community control and probation. The affidavits alleged that the appellant had failed to make certain required payments toward various costs that had been imposed against him and toward court ordered restitution. He was also charged with failing to attend the sex offender program, failing to report to his community control officer, and failing to remain at home during required hours. At the conclusion of the appellant’s revocation hearing, the court found that the evidence supported each of the alleged violations and revoked his probation and community control. The appellant was subsequently sentenced to serve two concurrent ten year sentences. This timely appeal followed.
We agree with the appellant’s contentions that the trial court erred by revoking his probation and community control for failure to make certain financial payments and for failure to complete a sex offender program. In order to revoke community control or probation on the basis of nonpayment of costs, fines, or restitution, it is necessary to present sufficient evidence to support a finding that the probationer had the ability to make the financial payments required of him. Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986). The record in this case does not support such a finding, but instead reflects that the appellant did not have the ability to make the required payments. The order requiring the appellant to complete a sex offender program did not specify when the program was to be completed and was not specific in other details concerning the program. The trial court, therefore, also erred in finding that the appellant, who testified that he was willing to enter and complete the program, had violated this condition of his community control and probation. Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990).
The state did, however, meet its burden of proving that the appellant violated his community control by failing to remain confined to his approved residence during required hours and by failing to report to his community control officer when required to do so. The trial court, accordingly, did not abuse its discretion by finding that the appellant had violated conditions (9) and (11) of his community control and revoking the appellant’s communi ty control for those violations. Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988). The court failed, however, to enter a written order setting forth the conditions that were violated. We, accordingly, must remand for the entry of a proper order setting forth the conditions of community control which the state proved were violated, i.e. conditions (9) and (11). Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990).
Although we do not agree with the appellant’s contention that his community control was improperly revoked, we do agree that the trial court erred in sentencing him. In preparing the guidelines score-sheet, the trial court improperly scored the aggravated battery charge which was committed in 1984 as prior record rather than as an additional offense. This resulted in a two cell increase in the recommended sentencing range. Prior offenses committed before the effective date of the 1986 amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) are to be scored as additional offenses. Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989).
We, accordingly, affirm the appellant’s convictions and remand for the entry of a proper order of revocation and for resentencing with a proper scoresheet.
Affirmed in part, reversed in part, and remanded.
LEHAN and ALTENBERND, JJ., concur.
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Cited By (16 total)
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Archer v. State, 604 So. 2d 561 (Fla. 1st DCA 1992)…treatment program or how many chances Young would have to obtain success. Archer’s reliance upon Young is misplaced. As Young makes clear, the defendant must express a desire to complete the stated condition of probation. See also Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA1990) (nonspecific, order combined with defendant’s testimony that he was willing to enter and complete the program demonstrated defendant had not violated this condition of probation). In this case, however, Archer adamantly maintained…
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Oates v. State, 872 So. 2d 351 (Fla. 2d DCA 2004)…o the omission in condition 30 of a specified date by which Oates was required to complete the task and the fact that Oates was not at the end of his probationary period. See Lynom v. State, 816 So. 2d 1218, 1220 (Fla. 2d DCA 2002); Haynes v. State, 571 So. 2d 1380, 1381 (Fla. 2d DCA 1990). As this court has recently observed, “the better practice is for the sentencing court to specify all performance conditions.” Davis v. State, 862 So. 2d 931, 935 (Fla. 2d DCA 2004) (Casanueva, J., concurring). Condition 1…
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Mabrey v. Fla. Parole Comm'n, 858 So. 2d 1176 (Fla. 2d DCA 2003)…, a necessary element to prove a violation, the State must present evidence of the probationer’s ability to pay. See Robinson v. State, 773 So. 2d 566, 567 (Fla. 2d DCA 2000); Cherry v. State, 718 So. 2d 294, 295 (Fla. 2d DCA 1998); Haynes v. State, 571 So. 2d 1380, 1381 (Fla. 2d DCA 1990). The parties agree that the rule announced in Stephens is applicable to Mabrey’s case, and the circuit court did not rule to the contrary. In support of his contention that the circuit court’s order departs from the essenti…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990)
- Young v. State, 566 So. 2d 69 (Fla. 2d DCA 1990)
- Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988)
- Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989)
- Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986)