BOBBY LEE SPRUILL, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1994-10-21
No. 93-2095
DAUKSCH and GOSHORN, JJ., concur.
643 So. 2d 1191 Florida District Court of Appeal, Fifth District (1994) Positive Treatment
Cited by 3 cases

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Holding

The court affirmed the revocation of probation but modified certain conditions and reversed some fees and costs.


Headnotes

[1] A probationer's failure to make restitution payments, even if reduced to an amount within their ability to pay, can constitute a violation of probation if the probationer…

[2] A trial court does not abuse its discretion by shifting control of a probationer's movements from the probation officer to the state attorney's office when the probatione…

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Facts & Procedural History

Spruill was convicted of fraud and theft, sentenced to prison and probation with a large restitution order. He failed to make full restitution payment…

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Opinion of the Court
DIAMANTIS, Judge.

DIAMANTIS, Judge.

Bobby Lee Spruill, Sr., appéals the trial court’s order which revoked his probation and placed him on two years community control followed by probation. We affirm the order revoking Spruill’s probation, but we modify certain conditions of his probation and community control, reverse some of the fees and costs assessed against Spruill, and remand this cause to the trial court for further proceedings.

Spruill was convicted of organized fraud and 132 counts involving theft and fraudulent sale of securities and investments. Spruill was sentenced to a split sentence of fifteen years imprisonment followed by probation. As a condition of probation, he was ordered to pay $1,700,000 in restitution to his victims at the rate of $17,000 per month.

Upon his release from prison, pursuant to an informal arrangement with his probation officer, Spruill began paying $50 per month in restitution which, based upon his income, was within his ability to pay; however, after his probation officer allowed Spruill to move to Tennessee to be with his son, Spruill failed to continue to make the $50 monthly payments. Spruill claimed that he could not make these payments because he only worked for his son for room and board.

The trial court revoked Spruill’s probation, finding that, although he could not pay the $17,000 monthly restitution payments, Spruill had not made a good faith effort to meet his obligation of restitution to the best of his financial ability. On appeal, Spruill challenges this ruling; however, the evidence is clear that Spruill had the ability to pay $50 per month restitution but failed to do so. The trial court, therefore, correctly concluded that Spruill did not make a good faith effort to meet his obligation to the best of his financial ability. See Stephens v. State, 630 So. 2d 1090, 1091 (Fla.1994) (citing Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 2072-73, 76 L.Ed.2d 221 (1983)).

Spruill additionally challenges the special conditions of his community control and probation which require him to remain in Marion County, Florida, unless permission is granted otherwise by the state attorney’s office. The record reflects that Spruill’s failure to make the $50 monthly restitution payments began when his probation officer allowed him to move to Tennessee and, thus, the trial court did not abuse its discretion in shifting control of Spruill’s movements from his probation officer to the state'attorney’s office.

Spruill also objects to the special condition requiring him to find and maintain employment for 60 hours per week. On the authority of Johnson v. State, 636 So. 2d 792 (Fla. 5th DCA 1994), and Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993), we modify special conditions 30, 31, and 32 of the community control order, and conditions 29, 30, and 32 of the probation order, to require that:

You shall work faithfully at suitable employment insofar as possible; and, if you are working less than 60 hours per week, you shall seek further employment as directed by the probation officer. We specifically approve of the requirement that Spruill work at least 60 hours per week on the authority of Robbins v. State, 641 So. 2d 939, 19 Fla.L.Weekly D1838 (Fla. 5th DCA 1994), where we stated:
Paying the restitution may require [the probationer] to work beyond an eight hour day and give up some creature comforts but this extra effort is made by many law abiding citizens to educate their children or to enjoy nonessentials. Restitution should at the very least enjoy the same priority as nonessential items....

Robbins, 641 So. 2d at 939, 19 Fla.L.Weekly at D1839. In this regard, Spruill has not shown that he cannot make the extra effort of working 60 hours a week. As in Therrien v. State, 637 So. 2d 288, 290 (Fla. 5th DCA 1994), rev. denied, No. 83,983 (Fla. Aug. 30, 1994), “[w]e prefer to leave in place the incentive for [Spruill] to make as much of the restitution as [he] can — leaving the burden on [him], if challenged, to prove that [he] has paid all that [he] can.”

The trial court erred, however, in imposing fines and costs for counts 136-38 because the state nol-prossed these counts and Spruill did not agree to pay any fines or costs for these counts. The trial court also erred in imposing mandatory court costs on a per-count rather than a per-case basis. See Rocker v. State, 640 So. 2d 163 (Fla. 5th DCA 1994). See also Hollingsworth v. State, 632 So. 2d 176 (Fla. 5th DCA 1994). Accordingly, we strike the fines and costs for counts 136-38 and the mandatory court costs for all counts beyond the first count.

As modified, AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH and GOSHORN, JJ., concur.


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Citator

Cited By

  • Hunter v. State, 651 So. 2d 1258 (Fla. 1st DCA 1995)
    …4), and Rocker v. State, 640 So. 2d 163 (Fla. 5th DCA 1994), which hold that costs levied under sections 960.20, 943.25 and 27.3455 must be imposed on a per-case basis. See also Wallace v. State, 637 So. 2d 385 (Fla. 5th DCA 1994); Spruill v. State, 643 So. 2d 1191 (Fla. 5th DCA 1994). The state replies that this court should not follow Hollingsworth because Hollings-worth’s charges, although occurring on separate days, were nevertheless charged in a single information. If we were to accept the state’s argume…
  • Brenton McNEIL v. State, 162 So. 3d 274 (Fla. 5th DCA 2015)
    …tat. (1991). Based on the “clear language” of the statute, this court held that the costs “must be imposed per case and not per count.” Rocker, 640 So. 2d at 163. Shortly after this court decided Rocker, it rendered its decision in Spruill v. State, 643 So. 2d 1191, 1193 (Fla. 5th DCA 1994), wherein this court, citing Rocker, held that “[t]he trial court also erred in imposing mandatory court costs on a per-count rather than a per-case basis.” In Hunter, the First District Court reviewed the same statute and h…
  • Taylor v. State, 949 So. 2d 345 (Fla. 4th DCA 2007)
    …on must be supported by the greater weight of the evidence. See Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992). On appeal, the abuse of discretion standard of review applies to an order of probation revocation. Id. In Spruill v. State, 643 So. 2d 1191, 1192 (Fla. 5th DCA 1994), the fifth district upheld the trial court’s order revoking the defendant’s probation for failure to make any payments towards his monthly restitution obligation. There, the defendant was ordered to pay $1,700,000 in restit…

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