LEROY MCCOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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LeRoy McCoy appealed revocation of his community control sentence based on alleged violations of five conditions. The appellate court reversed the revocation, finding insufficient evidence that McCoy willfully and substantially violated the conditions, particularly those relating to financial payments and obtaining counseling within the required timeframe.
The court reversed the revocation order, finding insufficient evidence to support violations of any of the five conditions. The court held that the trial court failed to establish McCoy's financial ability to pay costs, that confusion about payment timing does not constitute willful violation, and that McCoy's reasonable efforts to obtain counseling negated a finding of willful and substantial violation.
[1] A finding that a defendant willfully and substantially violated a condition of community control requires proof of the defendant's ability to pay costs imposed.
[2] Failure to abide by a payment schedule devised by a probation officer is insufficient to support a violation of community control.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The evidence, however, was insufficient to support this finding. The court did not find that Mr. McCoy had the financial ability to pay these costs.”
Establishes the critical requirement of proving financial ability before finding violation of payment conditions
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Join FLexlaw to unlock all legal intelligenceMcCoy was sentenced to one year of community control followed by three years of probation. The trial court found him in violation of five conditions: …
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ALTENBERND, Acting Chief Judge.
LeRoy McCoy appeals an order revoking his community control based on a finding that he violated five conditions. He contends the evidence was insufficient to prove he willfully and substantially violated each of these conditions. We agree and reverse.
The trial court found Mr. McCoy violated three conditions relating to his obligation to pay various costs and to pay $30 per month toward the costs of supervision. The evidence, however, was insufficient to support this finding. The court did not find that Mr. McCoy had the financial ability to pay these costs. See Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986).
There is nothing in the record to establish that the trial court imposed a payment schedule for the costs, other than the costs of supervision. The order imposing community control simply provides that costs totaling $600 were to be paid within twelve months. There is no dispute that twelve months had not elapsed when Mr. McCoy’s violation of community control affidavit was filed. Even if we assume the probation officer established a payment schedule for Mr. McCoy, a failure to abide by a payment schedule devised by a probation officer is not sufficient to support a violation. See Seders v. State, 700 So. 2d 126 (Fla. 2d DCA 1997). Finally, it appears Mr. McCoy failed to pay his monthly $30 cost because of confusion about when his payments were due, not because of a deliberate act of misconduct. In fact, there is uncontroverted evidence that Mr. McCoy paid $194 toward a restitution amount when he was notified that this payment was due.
Mr. McCoy’s other two violations related to his failure to obtain substance abuse and mental health counseling within sixty days after the order imposing community control. Mr. McCoy did not dispute that he failed to comply with these two conditions, but he presented substantial evidence showing he made reasonable efforts to comply with these two conditions and would have been in compliance shortly after the date he was arrested had he not been taken into custody. Although a trial court has broad discretion to determine whether a condition of community control has been violated, the greater weight of the evidence in this ease does not support the court’s finding that Mr. McCoy willfully and substantially violated these two conditions of his community control.
The trial court originally sentenced Mr. McCoy to one year of community control followed by three years’ probation. If the trial court had not revoked Mr. McCoy’s community control, he would have completed community control by now and would be on probation. On remand, therefore, the trial court shall give Mr. McCoy credit toward his sentence of community control and probation for the time he has served in jail and prison because of these proceedings. See Freeman v. State, 634 So. 2d 1152 (Fla. 4th DCA 1994).
Reversed and remanded.
CASANUEVA, J., and DANAHY, PAUL W., (Senior) Judge, Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000)…the revocation hearing, it appears that Mr. Butler’s failure to comply with this condition resulted from confusion regarding the requirement and because of a transportation problem, not because of a deliberate act of misconduct. See McCoy v. State, 730 So. 2d 803 (Fla. 2d DCA 1999). Furthermore, the condition did not specify a time by which the classes were to begin and the probation officer did not specify a date certain for compliance. See Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995) (reversing revoc…
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Davis v. State, 867 So. 2d 608 (Fla. 2d DCA 2004)…supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of community control. See State v. Carter, 835 So. 2d 259, 261 (Fla.2002); McCoy v. State, 730 So. 2d 803, 804 (Fla. 2d DCA 1999). The defendant’s failure to comply does not, in every instance, establish a willful and substantial violation justifying revocation as “[t]here may be circumstances where revocation is patently unfair.” Carter, 835 So. 2d at…
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Hutchinson v. State, 801 So. 2d 291 (Fla. 1st DCA 2001)…elict the probationer in failing to pay under its terms, if such schedule is not imposed by the court, then the probationer has the entire probation term to pay the costs.) See also Smith v. State, 738 So. 2d 433 (Fla. 1st DCA 1999); McCoy v. State, 730 So. 2d 803 (Fla. 2d DCA 1999). REVERSED and REMANDED. BOOTH, WEBSTER and PADOVANO, JJ„ CONCUR.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. State, 481 So. 2d 1312 (Fla. 2d DCA 1986)
- Alachua Gen. Hosp., Inc. v. Crapo, 634 So. 2d 1152 (Fla. 1st DCA 1994)
- Seders v. State, 700 So. 2d 126 (Fla. 2d DCA 1997)
- James v. State, 700 So. 2d 126 (Fla. 2d DCA 1997)