MARJORIE ELIZABETH THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marjorie Elizabeth Thomas appealed the revocation of her probation and imposition of 36 months' incarceration for failure to comply with a restitution payment schedule. The First District Court of Appeal reversed, holding that probation may only be revoked for violation of conditions imposed by the trial court, not conditions unilaterally established by a probation officer.
Probation may only be revoked for violation of a condition imposed by the court, not by a probation officer. A condition of probation is invalid if it delegates to the probation officer the right to determine the rate of repayment of restitution. Therefore, the revocation was improper and must be reversed.
[1] Probation may only be revoked for a violation of a condition imposed by the court.
[2] A condition of probation is invalid if it delegates to the probation officer the right to determine the rate of repayment of restitution.
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Join FLexlaw to unlock all legal intelligence“Probation may only be revoked where there is a violation of a condition imposed by the court.”
Establishes the core legal principle that probation revocation requires violation of court-imposed, not officer-imposed, conditions.
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Join FLexlaw to unlock all legal intelligenceThomas pleaded nolo contendere to grand theft in September 1992 and received three years probation conditioned on paying $1,860 in restitution. The pr…
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SHIVERS, Senior Judge.
Marjorie Elizabeth Thomas has appealed an order of the trial court revoking her probation and imposing 36 months’ incarceration. We reverse.
On September 8, 1992, after pleading nolo contendere to grand theft, Thomas received three years probation, conditioned in part on payment of $1860 in restitution “with partial payments being accepted, through and as directed, by the probation office.” On October 13, 1992, Thomas’ probation officer set up a restitution payment plan of $95 per month. Three months later, he filed a probation violation affidavit, stating that Thomas had failed to make the $95 payments in November and December 1992.
At the subsequent hearing, Thomas testified that she could not meet the schedule. She stated that she was unemployed and on disability based on profound depression, anxiety attacks, a severe back injury, arthritis, and spinal problems. She further testified that, after paying her bills, approximately $16.00 remained of her $454.00 monthly disability check, out of which she paid $5.00 monthly toward restitution. The probation officer verified the two $5 payments, and stated that he did not dispute Thomas’ financial situation. The trial court thereafter revoked Thomas’ probation for violating the payment schedule, adjudicated her guilty, and imposed a 36-month prison term.
Thomas argues that her probation could not be revoked for failing to follow a payment schedule established, not by the trial court, but by the probation officer. The State concedes error, and we agree. Probation may only be revoked where .there is a violation of a condition imposed by the court. Moore v. State, 628 So. 2d 795, 796 (Fla. 1st DCA 1993). Further, probation may not be revoked for a violation of an invalid condition, and a condition of probation is invalid if it delegates to the probation officer the right to determine the rate of repayment of restitution. White v. State, 606 So. 2d 1265 (Fla. 1st DCA 1992).
Accordingly, we reverse the revocation of probation herein, and remand for reinstatement of the original probationary term.1 On remand, the trial court shall establish a schedule for the payment of restitution required as a condition of that probation.
MINER and ALLEN, JJ., concur. . This disposition obviates the need to address Thomas’ additional argument that, based on her showing of inability to meet the restitution schedule, the trial court should have considered alternative methods of punishment to incarceration. See § 948.06(4), Fla.Stat. (if a probationer proves that he or she does not have the ability to pay restitution despite bona fide efforts to legally acquire the resources to do so, the court shall consider alternate measures of punishment other than imprisonment).
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State v. Clements, 668 So. 2d 980 (Fla. 1996)…. Marjorie Elizabeth Thomas died while appealing a new restitution schedule imposed on her by the trial court after the First District Court of Appeal found improper the revocation of her probation for nonpayment of restitution. See Thomas v. State, 635 So. 2d 1009 (Fla. 1st DCA 1994). Counsel for each respondent filed a motion for abatement ab initio in the First District. The court granted the motions in both cases in light of its previous decisions in Williams v. State, 648 So. 2d 313 (Fla. 1st DCA 1995), a…
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Briggs v. State, 647 So. 2d 182 (Fla. 1st DCA 1994)…atisfies the requirements of section 39.059(7), Florida Statutes (1993). Concerning restitution, however, it was improper for the trial court to delegate to the probation officer the responsibility for fashioning a payment plan. See Thomas v. State, 635 So. 2d 1009 (Fla. 1st DCA 1994); White v. State, 606 So. 2d 1265 (Fla. 1st DCA 1992). Consequently, we remand the case for further proceedings so that the trial court may fashion a plan for payment of restitution. AFFIRMED in part, REVERSED in part, and REMAN…
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Pearce v. State, 968 So. 2d 92 (Fla. 2d DCA 2007)…, 685 So. 2d 1367, 1368 (Fla. 2d DCA 1996); Douglas v. State, 664 So. 2d 1099, 1099 (Fla. 2d DCA 1995); Guinn v. State, 652 So. 2d 902, 902 [*94] (Fla. 2d DCA 1995); Briggs v. State, 647 So. 2d 182, 182 (Fla. 1st DCA 1994); see also Thomas v. State, 635 So. 2d 1009, 1010 (Fla. 1st DCA 1994) (finding error where the trial court revoked probation based on the defendant’s failure “to follow a payment schedule established, not by the trial court, but by the probation officer”). In addition, while the trial court c…
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- White v. State, 606 So. 2d 1265 (Fla. 1st DCA 1992)