BILL HEWETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Hewett appeals an order extending his probation term after he failed to pay court costs and restitution. The appellate court affirmed the extension, holding that Florida's 1984 amendment to section 948.06(4) permits probation extension for nonwillful failures to pay restitution, superseding the prior Smith v. State rule requiring proof of willful violation.
The court held that Florida Statutes section 948.06(4), amended in 1984, allows a court to extend a probation term for nonwillful failures to pay restitution or costs as an alternative punishment, superseding the Smith rule. Extension is permissible after proper notice and hearing when the court finds a violation of restitution conditions was not willful, provided total penalties do not exceed statutory limits.
[1] A court may extend a period of probation for a non-willful failure to pay restitution or costs, provided the total period of punishment does not exceed statutory limits.
[2] A statutory amendment allowing for alternative measures of punishment for non-willful failure to pay restitution supersedes prior case law requiring a showing of willful…
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“a period of probation can be extended only upon a showing of a willful violation of probation following proper notice and hearing”
Statement of the Smith v. State rule that Hewett argued should apply, requiring willful violation for extension
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn December 8, 1988, Hewett was placed on two years' probation for grand theft with conditions requiring payment of $220 court costs, $350 public defe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Willful Violation cases and more on FLexlaw
PETERSON, Judge.
Bill Hewett appeals an order extending his period of probation in circuit court case number 88-1625. We affirm.
In that case, on December 8, 1988, Hew-ett was placed on two years’ probation for grand theft and was ordered to pay $220 court costs, a $350 public defender fee, and $714 restitution as conditions of probation. On May 3, 1990, the state filed an affidavit alleging that the defendant had violated his probation by failing to pay these costs.
The record indicates Hewett also had been ordered to pay $7,000 in restitution as a condition of probation in another case, number 89-1308, and that he failed to pay that restitution. Inexplicably, it appears the state ignored that violation when it enforced the conditions in case number 88-1625.
At the hearing on August 10,1990, Hew-ett’s defense was his inability to pay. The trial court subsequently entered an order extending the term of probation for two years to allow Hewett an opportunity to make the past-due payments. Relying on Smith v. State, 377 So. 2d 250 (Fla. 3d DCA 1979), Hewett argues that the court should not have ordered the extension when no violation was specifically found. In Smith, the district court held that a period of probation can be extended only upon a showing of a willful violation of probation following proper notice and hearing.
Section 948.06, Florida Statutes, was amended in 1984 by the addition of subsection (4). Subsection (4) allows a court to consider alternative measures of punishment other than imprisonment if a probationer cannot pay restitution or cost of supervision despite sufficient bona fide efforts. We believe that the amendment supersedes the Smith rule by allowing an extension of a term of probation for a nonwillful failure to pay as to the original punishment. This alternative punishment is subject to the limitation that the sum of all penalties, to-wit: jail or prison time, community control, and probation, does not exceed the prescribed statutory limit for the crimes. In so holding, we recognize the supreme court’s statement in Clark v. State, 579 So. 2d 109, 111 (Fla. 1991): “Absent proof of a violation, the court cannot change an order of probation or community control, by enhancing the terms thereof.Clark did not involve a failure to pay restitution; it dealt with the issue of the requirement of a hearing before terms of probation or community control can be enhanced. Thus, there was no need in Clark to distinguish between willful and nonwillful violations of restitution conditions. We do not believe that the supreme court in Clark was directing that alternative punishment could not be given under subsection (4) after proper notice and hearing where the court finds the violation of a probation condition of restitution was not willful.
AFFIRMED.
W. SHARP, and DIAMANTIS, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fla. Dep't of Bus. & Prof'l Reg. v. Gulfstream Park Racing Ass'n, Inc., 967 So. 2d 802 (Fla. 2007)…this Court has addressed the operation of severability clauses on several occasions. See, e.g., Heggs v. State, 759 So. 2d 620, 628 (Fla.2000); Moreau v. Lewis, 648 So. 2d 124, 127 (Fla.1995); St. Johns County v. Northeast Fla. Builders Ass’n, Inc., 588 So. 2d 635, 640 (Fla.1991). This Court has held that although severability clauses are highly persuasive, such clauses are not binding on courts. See St. Johns County, 583 So. 2d at 640. The decision whether to sever an unconstitutional provision from the rema…
-
Hewett v. State, 613 So. 2d 1305 (Fla. 1993)…KOGAN, Justice. We have for review Hewett v. State, 588 So. 2d 635 (Fla. 5th DCA1991), based on express and direct conflict with Clark v. State, 579 So. 2d 109 (Fla.1991). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. While on two years’ probation for grand theft, Bill H. Hewett allegedly violated the terms…1 / 2
Authorities Cited
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- Smith v. State, 377 So. 2d 250 (Fla. 3d DCA 1979)