ROSANNA MURRAY GEORGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that probation cannot be revoked solely for failure to pay costs without a finding of ability to pay, and that other alleged violations were not sufficiently proven.
George's probation was revoked based on five alleged violations, including failure to file reports, pay costs, notify of employment changes, notify of…
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SHIVERS, Chief Judge.
An affidavit was filed alleging George violated the conditions of her probation by (1) failing to file a written report in September 1989, (2) failing to pay costs of supervision, (3) leaving her employment without the permission of her probation officer, (4) moving from her residence without the permission of her probation officer, and (5) committing petit theft. After a hearing the trial court found George violated all these conditions, revoked George’s probation and sentenced her to eighteen months incarceration. We reverse and remand.
Allegations (1) and (4) were adequately proven; but allegations (2), (3) and (5) were not. Absent finding that defendant has ability to pay, probation cannot be revoked based on failure to pay court costs. McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988). The trial court made no such finding and George’s testimony that she lacked the ability to pay was unrefuted. Further, informing the probation officer of a job change was not a condition of George’s probation; and the allegation that George committed petit theft was supported only by a hearsay statement from the probation officer. Without alleged violations (2), (3) and (5), the trial court may not have revoked George’s probation or imposed the same sentence for not filing a monthly report and not getting the probation officer’s permission to change residences. We reverse the order of revocation and remand for redetermination. Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983); Neves v. State, 502 So. 2d 1343 (Fla. 2d DCA 1987); Hoshaw v. State, 533 So. 2d 886 (Fla. 3d DCA 1988).
Because there is no written order in the record specifying which conditions were violated, we remand with instructions to enter such an order should the trial court on remand conclude to revoke George’s probation. West v. State, 553 So. 2d 254 (Fla. 4th DCA 1989).
ALLEN and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Quinton NIX v. State, 604 So. 2d 920 (Fla. 1st DCA 1992)…so.” See Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985) (if defendant [*922] shows inability to pay, trial court must determine whether probation should be revoked based on defendant’s failure to work at lawful occupation). Cf. George v. State, 577 So. 2d 996 (Fla. 1st DCA 1991) (absent finding that defendant has the ability to pay, probation cannot be revoked due to the failure to pay costs of supervision). Regarding appellant’s second issue, however, we are in agreement that the retail value of the ga…
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McQUITTER v. State, 622 So. 2d 590 (Fla. 1st DCA 1993)…1 (Fla. 3d DCA 1989). In a similar vein, where the record does not contain a written order of revocation of probation, remand is proper to permit the trial court to enter a written order setting forth the grounds for the revocation. George v. State, 577 So. 2d 996, 997 (Fla. 1st DCA 1991). The record in this case supports the trial court’s finding that appellant committed multiple violations of conditions of his probation by being in possession of a weapon, committing an aggravated assault, and failing to pa…
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Caylor v. State, 624 So. 2d 338 (Fla. 1st DCA 1993)…e is no record of the conditions upon which revocation was based. Therefore, upon remand, the trial court should enter a "written revocation order setting forth the conditions of probation which appellant was found to have violated. George v. State, 577 So. 2d 996, 997 (Fla. 1st DCA 1991). Regarding the state’s motion to dismiss, appellant’s counsel properly notes that in Ford v. State, 575 So. 2d 1335, 1337 (Fla. 1st DCA), review denied, 581 So. 2d 1310 (Fla.1991), this court ruled that a direct appeal can…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)
- Kenton Anthony Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)
- West v. State, 553 So. 2d 254 (Fla. 4th DCA 1989)
- Hoshaw v. State, 533 So. 2d 886 (Fla. 3d DCA 1988)
- Neves v. State, 502 So. 2d 1343 (Fla. 2d DCA 1987)