MICHAEL WHIDDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
In this direct criminal appeal, appellant contends that the trial court erroneously revoked his probation. The trial court based its decision on findings that appellant had violated two conditions of his probation by failing to make monthly reports to his probation officer, and by faffing to pay restitution and other specified monetary obligations. The record clearly supports the trial court’s finding regarding the failure to make monthly reports. However, the record will not support the finding regarding the failure to pay monetary obligations because the trial court did not find that appellant had the ability to pay those obligations. See e.g., Vincent v. State, 699 So. 2d 806 (Fla. 1st DCA 1997). It is not clear to us that the trial court would have revoked appellant’s probation based solely upon the failure to make monthly reports. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER, ALLEN and WEBSTER, JJ., concur.
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Martin v. State, 937 So. 2d 714 (Fla. 1st DCA 2006)…to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.”) (citing Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)); Whidden v. State, 701 So. 2d 1224, 1225 (Fla. 1st DCA 1997) (reversing because “the record will not support the finding regarding the failure to pay monetary obligations because the trial court did not find that appellant had the ability to pay those obligations”); Vincent v. State,…
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Bishop v. State, 21 So. 3d 830 (Fla. 1st DCA 2008)…fore us whether the trial court would have revoked Appellant’s probation in the absence of the improper findings. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. See Whidden v. State, 701 So. 2d 1224, 1225 (Fla. 1st DCA 1997). Appellant was sentenced to probation after pleading nolo contendere to aggra [*831] vated assault with a deadly weapon. Under the conditions of probation, Appellant was prohibited from carrying a weapon and required to fo…
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Smith v. State, 892 So. 2d 513 (Fla. 1st DCA 2004)…2) and (18) of his community control by failing to pay both his court costs and costs of supervision. The court did not, however, find either orally or in its written order that appellant had the ability to pay. This was error. See Whidden v. State, 701 So. 2d 1224 (Fla. 1st DCA 1997). [*515] Accordingly, we remand for such a determination. Id. II. Failure to Attend Counseling The trial court also found that appellant violated term (19) of his community control by failing to attend counseling. The record rev…
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- Vincent v. State, 699 So. 2d 806 (Fla. 1st DCA 1997)