MARTIN GONZALES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed probation revocation where defendant failed to pay court-ordered restitution and costs, rejecting his hearsay challenge and holding that the burden rests on the probationer to prove inability to pay by clear and convincing evidence.
The burden of proving inability to pay court-ordered restitution and costs rests on the probationer by clear and convincing evidence under Florida Statute § 948.06(5).
[1] Under Florida Statute § 948.06(5), the burden rests on a probationer to prove by clear and convincing evidence inability to pay court-ordered restitution or supervision c…
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Join FLexlaw to unlock all legal intelligence“it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so”
Statutory burden of proof regarding inability to pay under § 948.06(5), Fla. Stat. (2004)
Gonzales was on probation and failed to pay court-ordered restitution and court costs. He challenged the revocation order on hearsay grounds and argue…
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PER CURIAM.
Martin Gonzales appeals an order of revocation of probation. We affirm.
Defendant-appellant Gonzales argues that the revocation of his probation was based entirely on hearsay evidence and must be reversed. See A.J.D. v. State, 842 So. 2d 297 (Fla. 3d DCA 2003). Assuming that point was sufficiently preserved in the trial court, we disagree with the defendant’s characterization of the evidence presented. It consisted of a sufficient amount of direct evidence in addition to hearsay.
The trial court found, among other things, that the defendant had failed to pay court ordered restitution and failed to pay court costs. Relying on Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983), the defendant argues that the State must prove the defendant was financially able to make the payments before failure to pay will warrant revoking probation. That part of the Edwards decision is no longer good law. It is now provided by statute that the burden of proof on this issue rests on the defendant. If the probationer’s defense is inability to pay, “it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.” § 948.06(5), Fla. Stat. (2004); see Guardado v. State, 562 So. 2d 696, 696-97 (Fla. 3d DCA 1990). The defendant offered no such proof in the trial court.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…e it shall appear that the error complained of has resulted in a miscarriage of justice.”) I therefore dissent. I would approve the decision of the Third District in the case on review as well as the Third District’s decisions in Gonzales v. State, 909 So. 2d 960 (Fla. 3d DCA 2005), and Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990). I would disapprove Shepard v. State, 939 So. 2d 311 (Fla. 4th DCA 2006), Blackwelder v. State, 902 So. 2d 905 (Fla. 2d DCA 2005), and Osta v. State, 880 So. 2d 804 (Fla. 5…1 / 3
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del Valle v. State, 994 So. 2d 425 (Fla. 3d DCA 2008)…PER CURIAM. Affirmed. See Gonzales v. State, 909 So. 2d 960, 960 (Fla. 3d DCA 2005) (“If the probationer’s defense is inability to pay, ‘it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution o…
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Miles v. Daniel Weingrad, M.D., 164 So. 3d 1208 (Fla. 2015)…this ease from Del Valle v. State, 80 So. 3d 999 (Fla.2011), on which the concurrence relies to establish the basis for accepting jurisdiction here. The entirety of the district court’s opinion in Del Valle reads: Affirmed. See Gonzales v. State, 909 So. 2d 960, 960 (Fla. 3d DCA 2005) (“If the probationer’s defense is inability to pay, ‘it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution o…
Authorities Cited
- Claro E. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990)
- Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983)
- Ikehara v. Viands, 842 So. 2d 297 (Fla. 3d DCA 2003)
- A.J.D. v. State, 842 So. 2d 297 (Fla. 3d DCA 2003)