MARY ELIZABETH BONOM POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationer's community control had expired before the arrest warrant was issued, and the trial court failed to make a finding of ability to pay restitution and costs.
[1] A trial court must find a probationer had the ability to pay before revoking probation for failure to pay restitution and court costs.
[2] A trial court cannot revoke probation based on a violation of community control if the arrest warrant was not signed before the expiration of the community control period…
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Join FLexlaw to unlock all legal intelligenceAppellant was found to have violated conditions of her community control and probation, leading to revocation and a sentence of incarceration. The all…
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PER CURIAM.
Multiple affidavits were filed alleging Appellant violated the conditions of her community control and probation by: (1) failing to pay restitution; (2) failing to pay court costs; (3) leaving employment without the permission of her probation officer; (4), (5), (9) and (12) failing to comply with her probation officer’s instructions; (6) and (7) failing to receive self-improvement counseling; (8) failing to seek and maintain employment; and (10) and (11) failing to submit monthly reports. After a hearing, the trial court found Appellant violated the conditions of her probation, revoked her probation and sentenced her to sixty months’ incarceration. We reverse and remand.
As to allegations (1) and (2), the trial court failed to make a finding that Appellant had the ability to pay restitution and court costs. See Stephens v. State, 630 So. 2d 1090 (Fla.1994) (holding trial court must find probationer had ability to pay before revoking probation based on failure to pay restitution and costs). Consequently, the revocation of probation based on allegations (1) and (2) must be reversed.
Allegations (3)-(8) involve violations of Appellant’s community control, which expired on January 29, 2004, two weeks before the arrest warrant was signed. See Hoffman v. State, 729 So. 2d 421, 423 (Fla. 1st DCA 1999) (holding trial court cannot revoke probation based on violation of community control if warrant not signed before expiration of community control period). Accordingly, revocation based on allegations (3) through (8) must also be reversed.
The findings as to allegations (9) through (12) are supported by competent, substantial evidence. However, because the written order does not specify which conditions were violated, it is unclear whether the trial court, would have revoked Appellant’s probation or imposed the same sentence based upon the remaining violations. See George v. State, 577 So. 2d 996, 997 (Fla. 1st DCA 1991).
The order of revocation is REVERSED and the case REMANDED for redetermination consistent with this opinion.
KAHN, C.J., HAWKES, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shepard v. State, 939 So. 2d 311 (Fla. 4th DCA 2006)…sed the same sentence based upon a finding of guilt on allegations II and III alone, we must remand to the trial court for redetermination and, if the trial court again determines to revoke Shepard’s probation, for resentencing. See Powell v. State, 920 So. 2d 720, 721 (Fla. 1st DCA 2006); Fox v. State, 876 So. 2d 717, 717 (Fla. 4th DCA 2004). Reversed and Remanded. STONE and HAZOURI, JJ., concur. . The State dismissed allegations I, VI, VII, and VIII at the hearing, leaving the trial court to consider all…
Authorities Cited
- Stephens v. State, 630 So. 2d 1090 (Fla. 1994)
- Jarod H. Hoffman v. State, 729 So. 2d 421 (Fla. 1st DCA 1999)
- Rosanna Murray George v. State, 577 So. 2d 996 (Fla. 1st DCA 1991)