JAMES BAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Baker's community control was revoked and he was sentenced to 25 years in prison based on three alleged violations. The appellate court found that two violations (failure to pay supervision and electronic monitoring costs) lacked sufficient evidence that Baker had the ability to pay, but affirmed the revocation based on the remaining violation (unauthorized absence from approved residence evidenced by new felony charge).
The court affirmed the revocation of community control and the 25-year sentence based on the Grand Theft violation (count III). Although the trial court erred in finding violations on counts IV and V (payment failures) without evidence that Baker had the ability to pay, the error was harmless because the trial judge's remarks indicated he would have revoked Baker's community control based solely on count III and would have imposed the same sentence.
[1] A defendant's probation or community control cannot be revoked for failure to pay costs absent evidence of the defendant's ability to pay.
[2] A violation triggering revocation of community control must be deliberate, willful, and substantial.
Previewing 2 of 4 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“A defendant's probation or community control cannot be revoked unless the violation is willful.”
Establishes the foundational legal standard that violations must be willful and deliberate.
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Join FLexlaw to unlock all legal intelligenceJames Baker was on community control. The State alleged five violations, and the trial court found him guilty of three: (1) failure to remain confined…
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PER CURIAM.
We have for review an order of the trial court revoking James Baker’s community control and sentencing Baker to twenty-five years in prison. While the State alleged five violations, the trial court found Baker guilty of only three: failure to remain confined to his approved residence on August 27, 1999, “as evidenced by his new felony charge of Grand Theft” (count III); failure to pay the monthly costs of his supervision (count IV); and failure to pay the costs of his electronic monitoring (count V).
With respect to count III, Baker contends that the hearsay evidence was insufficient to support revocation and that the judge’s remarks regarding count III suggest that the court revoked his community control on a ground not charged. As for counts IV and V, Baker contends that it was error for the trial court to revoke his community control absent evidence that he had the ability to pay the sums due.
We reject Baker’s claims regarding count III without further comment. As for counts IV and V, while we find that the record evidence was insufficient to support a guilty finding on these violations, we nonetheless affirm the revocation and sentence based upon count III — the more serious of the violations.
A defendant’s probation or community control cannot be revoked unless the violation is willful. See Teich v. State, 776 So. 2d 1084, 1086 (Fla. 4th DCA 2001)(holding that “[a] violation triggering revocation of community control must be deliberate, willful, and substantial”).
Thus, to establish that a defendant violated his or her probation or community control by failing to pay court-ordered costs, the State must present evidence that the defendant had the ability to make such payments. See Robinson v. State, 773 So. 2d 566, 567 (Fla. 2d DCA 2000). The State concedes that there was no such evidence in the instant case, thus, the finding of guilt as to the violations alleged in counts IV and V must be reversed. In spite of the concession of error, however, the State argues that the revocation of Baker’s community control should be affirmed as the remarks of the judge indicate that he would have revoked Baker’s community control on the violation charged in count III alone.
The record supports the State’s contention in this regard.
Moreover, it is clear to us that the trial judge would have imposed the same sentence absent the violations charged in counts IV and V.
Consequently, we affirm the order appealed. See Griffin v. State, 719 So. 2d 972 (Fla. 4th DCA 1998); Olvey v. State, 707 So. 2d 1189 (Fla. 2d DCA 1998).
We remand the case so that the trial court may enter an amended order of revocation, citing only the violation charged in count III. Baker need not be present when the amended order is entered.
AFFIRMED and REMANDED.
WARNER, C.J., STEVENSON and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reed v. State, 127 So. 3d 817 (Fla. 2d DCA 2013)…n of condition 5 and the four violations of the condition that required him to remain confined to his residence. See Pollard v. State, 930 So. 2d 854, 856 (Fla. 2d DCA 2006); Ogletree v. State, 886 So. 2d 420, 421 (Fla. 2d DCA 2004); Baker v. State, 789 So. 2d 410, 411 (Fla. 4th DCA 2001). Finally, as argued by Mr. Reed and conceded by the State, the revocation order contains numerous flaws. It does not conform to the oral pronouncement; it incorrectly reflects that Mr. Reed committed all eight violations al…
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Davis v. State, 945 So. 2d 607 (Fla. 4th DCA 2006)…trial court’s findings that Davis committed new violations of the law, which were more serious than the “failure to report” violation, there is no need for the trial court to reconsider the revocation of Davis’ probation. See, e.g., Baker v. State, 789 So. 2d 410 (Fla. 4th DCA 2001). However, we direct the trial court to enter an amended order of revocation, deleting the reference to the violation for failure to report. Affirmed and remanded. GUNTHER and FARMER, JJ„ concur.…
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Travessa Eugene Merricks v. State, 90 So. 3d 893 (Fla. 4th DCA 2012)…JJ., concur. . Probation cannot be revoked for failure to pay the costs of electronic monitoring unless the violation is willful, which requires the state to present evidence that the defendant had the ability to make such payments. Baker v. State, 789 So. 2d 410 (Fla. 4th DCA 2001).…
Authorities Cited
- Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)
- Thomas v. State, 707 So. 2d 1189 (Fla. 1st DCA 1998)
- Griffin v. State, 719 So. 2d 972 (Fla. 4th DCA 1998)
- Mahoney v. Uladislao Diaz and Kyong Diaz, 719 So. 2d 972 (Fla. 5th DCA 1998)
- Teich v. State, 776 So. 2d 1084 (Fla. 4th DCA 2001)