KIRK OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not abuse its discretion in finding a willful probation violation and increasing restitution payments.
[1] A trial court does not abuse its discretion in finding a probation violation for insufficient restitution payments when the defendant is capable of paying more than the a…
[2] A defendant's voluntary payments to family members and charitable tithes may be considered by a trial court when determining the defendant's ability to pay restitution.
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Join FLexlaw to unlock all legal intelligenceKirk Oliver was ordered to pay $1,200 per month in restitution but only paid $100-150 per month, despite having a significant net income. The trial co…
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THOMPSON, J.
Kirk Oliver contends that the trial court abused its discretion in finding him guilty of a probation violation for failing to make sufficient restitution payments. We affirm.
As a condition of probation, Oliver was ordered to pay $246,761 in restitution.1 Although ordered to pay $1,200 per month restitution, Oliver had been paying only $100-150 per month.
The trial court determined that Oliver was tithing $175 per month to his church; paying $50 a month for clothing; spending $50 per month to eat out; paying $35 per month for haircuts and grooming; and paying his father and grandmother $75 each per month because they helped him financially when he was in jail. The court also questioned Oliver about the monthly “surplus” after he deducted his expenses from his income. Oliver established, without contradiction, that his net income had been about $30,000 for several years.
The trial court ruled that although Oliver could not pay the required $1,200 payment, he was capable of paying an amount greater than $100 to $150 per month.
The trial court increased the restitution amount to $400 per month. Compare Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000) (state failed to show probation violation where defendant was making payments on the restitution owed, and nothing in the record indicated that defendant could pay a greater amount).
We conclude that it was within the trial court’s discretion to find a wilful violation of probation and to increase the restitution payments. Bearden v. Georgia, 461 U.S. 660, 672-673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).
AFFIRMED.
SHARP, W. and MONACO, JJ., concur. . Oliver owed $230,000 to victims because of a scheme he devised. In the scheme, Oliver would purchase a person’s home and give the person back a second mortgage at a greater interest rate after receiving $10,000 from the person. Oliver would then take the home and mortgage elsewhere, but would not pay the mortgage. Many of the victims lost their homes, but some were able to keep their homes if they were able to pay approximately $10,000-15,000 and resume paying the mortgages.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983)
- Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000)