CHERYL M. GLASIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cheryl Glasier appealed the revocation of her probation, challenging the sufficiency of evidence supporting the violation findings. The court affirmed the revocation based on violations of alcohol consumption and refusal to submit to testing, but found insufficient evidence for violations related to payment of costs and court fees.
The court affirmed the revocation of probation but held that the evidence was insufficient to support violations of conditions 2 and 10 (payment failures) because the State failed to present evidence of Glasier's ability to pay. The evidence was sufficient to support violations of conditions 7 (alcohol consumption) and 13 (refusal to submit to testing).
[1] The State bears the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated probation.
[2] To prove a willful violation for failure to pay court costs or costs of supervision, the State must present evidence of the probationer's ability to pay.
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 State carries the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated probation.”
Establishes the applicable standard of proof required for probation revocation violations.
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Join FLexlaw to unlock all legal intelligenceGlasier was on probation with multiple conditions including prohibitions on excessive alcohol consumption, payment of supervision costs and court cost…
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CASANUEVA, Judge.
Cheryl M. Glasier has appealed from the trial court’s order revoking her probation, contending that her probation was revoked based on alleged violations for which there was no proof. Although we agree with Ms. Glasier that the evidence was insufficient to revoke her probation based on failure to pay costs of supervision (condition 2) and failure to pay court costs (condition 10), we hold that the evidence was sufficient to revoke her probation on the grounds that she had consumed alcohol to excess (condition 7) and had refused to submit to urinalysis and breathalyzer testing (condition 13).
“The State carries the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated probation.” Hines v. State, 789 So. 2d 1085, 1086 (Fla. 2d DCA 2001). When the probationer is accused of violating by failing to pay court costs or costs of supervision, the State must adduce evidence of her ability to pay to demonstrate willfulness. Robinson v. State, 773 So. 2d 566, 567 (Fla. 2d DCA 2000). When reviewing an order revoking probation, this court must assess whether the trial court abused its discretion. Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996).
We must strike from the order of revocation any reference to conditions 2 and 10 on the ground that the State failed to present any evidence demonstrating that Ms. Glasier had the ability to pay her costs. Evidence that consists only of the amount the probationer is in arrears is insufficient to prove her ability to pay and thus insufficient to prove the willfulness element of a violation. Robinson, 773 So. 2d at 567.
However, the trial court did not abuse its discretion in finding that the prosecution demonstrated by the greater weight of the evidence that Ms. Glasier had committed wilful and substantial violations of probation conditions 7 and 13. The State presented competent substantial evidence through a probation officer that in one instance Ms. Glasier refused to take a breathalyzer test and on another occasion a test registered her blood alcohol at .295. Ms. Glasier herself testified concerning her alcohol consumption.
Although we have found two invalid reasons for revocation, the trial court did not abuse its discretion in revoking Ms. Glasier’s probation based upon the two remaining valid grounds. Accordingly, we affirm the revocation of Ms. Glasier’s probation but remand for the trial court to strike references to conditions 2 and 10 from the revocation order. NORTHCUTT and COVINGTON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)
- Hines v. State, 789 So. 2d 1085 (Fla. 2d DCA 2001)
- Bennett v. State, 684 So. 2d 242 (Fla. 2d DCA 1996)