JULIE L. LIMBAUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Julie Limbaugh appeals her probation revocation for failure to pay restitution and supervision costs. The court reversed because the State presented no evidence that Limbaugh had the ability to pay, which is required to prove a willful violation of probation.
The court held that the State failed to meet its burden of proving a willful violation of probation because there was an absence of evidence and a judicial finding that the probationer had the ability to pay. The probation revocation was therefore reversed.
[1] A probationer's failure to pay restitution or costs constitutes a violation of probation only if the probationer had the ability to pay but willfully failed to do so.
[2] The State bears the burden of proving by a preponderance of the evidence that a probationer willfully and substantially violated a condition of probation.
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Join FLexlaw to unlock all legal intelligence“It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so.”
Establishes the legal standard requiring proof of ability to pay in probation violation cases involving failure to pay restitution or costs
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Join FLexlaw to unlock all legal intelligenceLimbaugh's probation required monthly restitution payments, supervision costs, court costs, and fines. While employed, she made all required payments …
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The appellant, Julie Limbaugh, appeals the trial court’s order finding that she violated her probationary placement, revoking probation, and placing her on an additional 10 years of probation. Because there is an absence of evidence and of a judicial finding that the probationer had the ability to pay, we reverse.
An extensive exposition of the facts is unnecessary for an understanding of our disposition of this case. Suffice it to say that Ms. Limbaugh’s probation was conditioned, among other things, upon her payment of a monthly restitution amount, as well as the cost of her supervision, court costs and fines. At the time of her hearing for violation of probation she was behind on both species of payments, and was violated solely for failure to make those payments.
The evidence produced by the State reflected that while she was employed, Ms. Limbaugh consistently made the required payments. After she got pregnant, however, she developed a condition known as placenta previa, and was compelled to relinquish her job. She thereafter made no further payments. Other than the payment issue, Ms. Limbaugh was doing everything else that was required on probation.
There was virtually no evidence adduced by the State concerning Ms. Limbaugh’s ability to pay her costs and restitution. *955Despite this void in the evidence, the trial court found that she violated her probation, and placed her on an additional term of ten years probation.
We review a trial court’s determination that a defendant willfully and substantially violated his or her probation using an abuse of discretion standard. Garity v. State, 970 So.2d 500, 502 (Fla. 5th DCA 2007). The State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of probation willfully and substantially. Ballien v. State, 942 So.2d 981, 983 (Fla. 5th DCA 2006) (citing Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006)); Lawson v. State, 941 So.2d 485, 488 (Fla. 5th DCA), approved, 969 So.2d 222 (Fla.2007). It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so. Shepard v. State, 939 So.2d 311, 314 (Fla. 4th DCA 2006) (citing Warren v. State, 924 So.2d 979, 980-81 (Fla. 2d DCA 2006)); see also Rogan v. State, 934 So.2d 593, 594-95 (Fla. 5th DCA 2006); Osta v. State, 880 So.2d 804 (Fla. 5th DCA), dismissed, 886 So.2d 227 (Fla.2004). Here, there is simply no evidence to underpin the violation.
Accordingly, we reverse the finding of violation of probation, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
GRIFFIN and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…d DCA 1990). All of the district courts of appeal other than the Third District have held that the tidal court must make a finding that the probationer had the ability to pay before probation can be revoked for failure to pay. See Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009) (“It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay,…
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Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010)…taken the car and been in an accident. To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation. See, e.g., Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009). In meeting this burden, the State may rely upon hearsay testimony, but hearsay alone is insufficient to sustain a revocation of probation. See, e.g., Smith-Curles v. State, 24 So. 3d 702, 702-03 (Fla. 1st DCA 2009). The non…
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Davell Kavon Knight v. State, 187 So. 3d 307 (Fla. 5th DCA 2016)…ion of a firearm by a convicted felon.1 At a violation of probation trial, “[t]he State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of probation willfully and substantially.” Limbaugh v. State, 16 So. 3d 954, 955 (Fla. 5th DCA 2009) (citing Baliten v. State, 942 So. 2d 981, 983 (Fla. 5th DCA 2006) (additional citation omitted)). This burden of proof is interchangeably described as the greater weight of the evidence standard. See Savage v. State, 120 So.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lawson v. State, 969 So. 2d 222 (Fla. 2007)
- Shepard v. State, 939 So. 2d 311 (Fla. 4th DCA 2006)
- Stewart v. State, 926 So. 2d 413 (Fla. 1st DCA 2006)
- Sami M. Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004)
- Lawson v. State, 941 So. 2d 485 (Fla. 5th DCA 2006)
- Rochester Warren v. State, 924 So. 2d 979 (Fla. 2d DCA 2006)
- Rogan v. State, 934 So. 2d 593 (Fla. 5th DCA 2006)
- Ballien v. State, 942 So. 2d 981 (Fla. 5th DCA 2006)
- Garity v. State, 970 So. 2d 500 (Fla. 5th DCA 2007)