WILLIAM PLANES, PETITIONER,
v.
CHARLES FELTON, DIRECTOR, DADE COUNTY DEPARTMENT OF CORRECTIONS, RESPONDENT
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William Planes was convicted of issuing a worthless check and placed on probation with a restitution requirement of $30,962.40. He petitioned for habeas corpus after being jailed for failure to make restitution payments without a hearing to determine his ability to pay. The court granted the writ, holding that before imprisoning a probationer for failure to make restitution, there must be a determination that the person had the ability to pay and willfully refused.
Before a probationer may be imprisoned for failure to make restitution, there must first be a determination that the person has, or has had, the ability to pay and willfully refused to do so. The trial judge's order incarcerating Planes without such a hearing violated this requirement.
[1] A probationer cannot be imprisoned for failure to make restitution without a prior determination that the probationer had the ability to pay and willfully refused to do s…
[2] A trial court must hold a hearing and determine a probationer's ability to pay before revoking probation and ordering incarceration for non-payment of restitution.
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Join FLexlaw to unlock all legal intelligence“Before a probationer may be imprisoned for failure to make restitution, there must first be a determination that the person has, or has had, the ability to pay and willfully refused to do so.”
States the legal standard required before a probationer can be incarcerated for restitution violations.
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Join FLexlaw to unlock all legal intelligencePlanes was convicted of a worthless check charge and had his adjudication of guilt withheld; he was placed on probation for six months with a restitut…
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PER CURIAM.
The petitioner stands convicted of a worthless check charge for which he was required to pay court costs and make restitution in the amount of $30,962.40. His adjudication of guilt was withheld and he was placed upon probation for six months, during which time restitution was to be made. Petitioner’s probation officer arranged a payment schedule. After difficulties arose, the probation officer arranged to have a modification of probation heard before the sentencing judge. When the appointed hour arrived, the petitioner appeared and an affidavit of violation of probation, based solely on the failure to make restitution, was filed against him. Petitioner forthwith entered a plea of not guilty and attempted to explain and present evidence showing that he did not have the ability to make the restitution ordered. The trial judge denied the hearing and proffer, and ordered the petitioner be taken into custody.
Before a probationer may be imprisoned for failure to make restitution, there must first be a determination that the person has, or has had, the ability to pay and willfully refused to do so. Stephens v. State, 630 So. 2d 1090, 1091 (Fla.1994). Through the instant petition, petitioner seeks his release from custody here by writ of habeas corpus. The state’s return admits the factual allegations of the petition. Consequently, we have no alternative but to allow the writ, award the relief, and order the petitioner’s discharge from custody subject, of course, to all extant underlying orders entered by the trial court.
The trial judge may be aware of refractory and dilatory propensities of the petitioner that ultimately will support the revocation of probation and incarceration, but the instant alleged violation without a hearing and subsequent determination that petitioner has or had the ability to make the restitution sought, will not do.
Habeas corpus granted.