ERNEST SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Violation Of Probation cases and more on FLexlaw
FARMER, Judge.
We reverse the order finding violations of defendant’s probation. The finding that he failed to attend and complete a drug rehabilitation program was not shown to be willful, and indeed the only evidence shows that his nonattendance was for reasons beyond his control. Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988). The finding that he failed to pay costs of supervision is unsupported by evidence showing he had the ability to make payment but willfully refused to do so; in fact his probation officer all but told him not to worry about paying these costs for the time being. The written order fails to conform to the oral pronouncement which found him guilty only of counts II through IV, not counts I through IV as written.
In view of these holdings, we remand to the trial court to consider whether to grant revocation upon the single count still standing.
REVERSED.
GLICKSTEIN, J., and BROWN, LUCY, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Aidone v. State, 763 So. 2d 1127 (Fla. 4th DCA 1999)…ioner had the ability to pay and willfully refused to do so. See Stephens v. State, 630 So. 2d 1090, 1091 (Fla.1994); Dirico v. State, 728 So. 2d 763, 767 (Fla. 4th DCA 1999); Thompson v. State, 710 So. 2d 80, 81 (Fla. 4th DCA 1998); Smith v. State, 642 So. 2d 1105, 1105 (Fla. 4th DCA 1994). The State bears the burden to demonstrate appellant’s ability to pay and the willful nature of his refusal. Holt v. State, 385 So. 2d 1133, 1134 (Fla. 5th DCA 1980). On remand, we instruct the trial court to determine appe…
-
Mabry v. State, 683 So. 2d 627 (Fla. 2d DCA 1996)…ssion. However, as to conditions (2) and (16), there was no evidence to establish that Mabry had the ability to pay court costs and restitution; therefore, the trial court could not revoke Mabry’s community control on that basis. See Smith v. State, 642 So. 2d 1105 (Fla. 4th DCA 1994); Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993). We affirm the judgment and sentences for revocation of community control conditions (3), (9), and (12). We remand the case to the trial court to delete any references in the…
Authorities Cited
- Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988)