BILL H. HEWETT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a trial court lacks authority to extend a probationer's probation term based solely on the probationer's inability to pay restitution. The court interpreted the sentencing statute as limiting judicial options to alternate measures (such as community service) or imprisonment, with neither probation extension nor community control being permissible absent a willful violation.
A trial court lacks authority to extend probation based on inability to pay restitution absent a finding of willful violation. The statute authorizes only alternate measures (such as community service) or imprisonment as options when a probationer cannot pay despite bona fide efforts. Probation extension and community control are not permissible alternatives.
[1] A trial court cannot extend probation based solely on a probationer's inability to pay restitution.
[2] Penal statutes must be strictly construed under Florida law.
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Join FLexlaw to unlock all legal intelligence“There is no ability to extend probation in the absence of wilful violation of the terms of probation.”
Establishes the core holding that probation extension requires a willful violation, not mere inability to pay
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Join FLexlaw to unlock all legal intelligenceBill H. Hewett was serving two years' probation for grand theft. He allegedly violated probation by failing to pay court-ordered restitution. After a …
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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 of his probation by failing to pay court-ordered restitution. An affidavit alleging the violation was filed May 3, 1990. The hearing was held August 10, 1990. The trial court found Hewett guilty of the violation but set this aside based on Hew-ett’s undisputed inability to pay. Over objection, the trial court then extended Hew-ett’s probation for two years, waived supervision costs, but reimposed the restitution requirement.
On appeal, Hewett argued that there was no authority to extend his probation in the absence of a finding of wilful violation. The district court rejected this argument on grounds that the 1984 amendments to the sentencing statutes authorized the procedure used here. Hewett v. State, 588 So. 2d 635 (Fla. 5th DCA1991). The statute in question now provides in pertinent part:
If the probationer or offender cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the state’s interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision.
§ 948.06(4), Fla.Stat. (1991). The statutory language is strongly underscored by Florida’s constitutional prohibition against imprisoning someone solely for debt except in cases of fraud. Art. I, § 11, Fla. Const. Under Florida law, penal statutes such as the one at issue here must be strictly construed. Art. I, § 9, Fla. Const.; see Jeffries v. State, 610 So. 2d 440 (Fla.1992); Perkins v. State, 576 So. 2d 1310 (Fla.1991). In this light, we do not read the above statute as authorizing any extension of probation based on simple inability to pay restitution. Rather, the trial court has the choice only of “alternate measures” or imprisonment, with the latter being strongly disfavored. There is no ability to extend probation in the absence of wilful violation of the terms of probation. Clark. Had the legislature intended the term “alternate measures” to include coercive forms of detention or control, we believe it would have said so expressly.
Rather, we believe that in this context “alternate measures” can include imposition of a community service requirement or similar measures falling short of more coercive measures such as community control, probation, or imprisonment. If the probationer then fails to comply despite the ability to do so, contempt proceedings and/or revocation of any then-existing probation could be justified. Another alternative might be entry of a judgment against the probationer, which then could be enforced against the probationer’s property under the applicable law. Accordingly, the opinion below is quashed, and this cause is remanded for further proceedings consistent with our views here.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW and HARDING, JJ., concur. GRIMES, J., concurs with an opinion, in which OVERTON and McDONALD, JJ., concur.
GRIMES, Justice,
concurring.
If the statute authorized it, I would see no objection to extending the time within which the defendant could make restitution beyond the probationary period. Then, if there was a failure to pay the restitution despite the ability to do so, the defendant could be held in contempt.
OVERTON and McDONALD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Ladon Maurice Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993)…do so. Therefore, pursuant to section 948.-06(4), it was incumbent upon the trial court to consider a sanction other than imprisonment, with respect to appellant’s failure to comply with the monetary conditions of his probation. See Hewett v. State, 613 So. 2d 1305 (Fla.1993). In addition, the record reflects that the trial court delegated the determination of the amount of payments to the probation officer. This was improper. See Jordan, 610 So. 2d at 618. Similarly, the record in this case, will not support…
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Laing v. State, 622 So. 2d 560 (Fla. 3d DCA 1993)…defendant’s probation and extending it sixteen months with early termination upon completion of restitution. This appeal follows. A term of probation may not be extended when the defendant’s violation of probation was not willful. Hewett v. State, 613 So. 2d 1305 (Fla.1993). In the instant case, the trial court found that the defendant’s failure to pay restitution was not willful. However, as demonstrated by the record, this finding may have been based on an erroneous calculation of the defendant’s expenses.…
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White v. State, 693 So. 2d 119 (Fla. 2d DCA 1997)…ully failed to pay restitution. Because he did not prove by clear and convincing evidence that he lacked the ability to pay, the trial court correctly modified Mr. White’s probation by extending the term for 2⅜ additional years. See Hewett v. State, 613 So. 2d 1305 (Fla.1993); Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993). Mr. White was not entitled to credit for the time already served on probation because the new term did not exceed the 5-year statutory maximum' for the third-degree felonies. State v.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- Jeffries v. State, 610 So. 2d 440 (Fla. 1992)
- Hewett v. State, 588 So. 2d 635 (Fla. 5th DCA 1991)