JEFFREY JOSEPH MARZENDORFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Marzendorfer challenged the revocation of his probation based on violations of special conditions, including failure to pay restitution and possession of alcohol. The court held that while the condition regarding alcohol could not be challenged at this stage, the trial court reversibly erred in revoking probation for failure to pay restitution without first determining Appellant had the ability to pay.
The trial court reversibly erred in revoking probation for failure to pay restitution without first determining that Appellant had the ability to pay. The court struck the finding of willful violation of the restitution condition from the probation order and reversed and remanded because it was unclear whether the trial court would have revoked probation based solely on the alcohol violation.
[1] A defendant may not challenge the legality of a probation condition after the time for appeal has passed.
[2] A court cannot revoke probation for failure to pay restitution without first determining the defendant had the ability to pay.
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Join FLexlaw to unlock all legal intelligence“before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so”
Establishes the legal standard required before revoking probation for failure to pay restitution, citing Stephens v. State
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Join FLexlaw to unlock all legal intelligenceAppellant was on probation with special conditions including a prohibition on possessing or consuming alcohol and an obligation to pay restitution. Th…
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Appellant challenges the trial court’s denial of his motion to dismiss the allegation that he violated probation by failing to abide by the special condition prohibiting him from possessing or consuming alcohol, and the subsequent revocation of his probation based on his violating this condition, on grounds that the condition was illegally imposed. Because Appellant is not entitled now to challenge the legality of the special condition, these claims do not merit discussion. Matthews v. State, 736 So.2d 72, 75 (Fla. 4th DCA 1999) (quoting State v. Powell, 703 So.2d 444 (Fla.1997)).
*958However, Appellant’s claim that the trial court erred in revoking his probation for his failure to pay restitution without making a determination that he had the ability to pay is meritorious. It is undisputed that Appellant failed to pay restitution. However, “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994). Here, the trial court reversibly erred in failing to make a determination that Appellant had the ability to pay restitution, and therefore, the finding that Appellant willfully violated the condition requiring him to pay restitution must be stricken from the probation order. See Odom v. State, 15 So.3d 672 (Fla. 1st DCA 2009). Because it is unclear from the record whether the trial court would have revoked probation and imposed the same sentence based solely on Appellant’s violation of the condition prohibiting him from possessing or consuming alcohol, we reverse the revocation order and remand for further proceedings. Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997); Mordica v. State, 618 So.2d 301, 305 (Fla. 1st DCA 1993).
REVERSED AND REMANDED.
WOLF, WEBSTER, and CLARK, JJ., concur.
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Quinton Lavar Smith v. State, 49 So. 3d 833 (Fla. 1st DCA 2010)…er the trial court would have revoked Appellant’s probation and imposed the same sentence based on Condition 9 alone, assuming the court is unable to make the requisite findings as to the alleged violation of Condition 20. See Marzendorfer v. State, 16 So. 3d 957, 958 (Fla. 1st DCA 2009) (stating the general rule requires remand when it is unclear from the record whether the trial court would have revoked the appellant’s probation and imposed the same sentence based solely on the condition the appellate cour…
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Melton v. State, 65 So. 3d 96 (Fla. 1st DCA 2011)…emand for the trial court to enter a corrected order strik [*98] ing the reference to violation of condition (5) for possession of drugs, and to resen-tence Melton only for violation of condition (1) for failure to report. See Marzendorfer v. State, 16 So. 3d 957, 958 (Fla. 1st DCA 2009); Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997). AFFIRMED in part, REVERSED in part, and REMANDED for a corrected order consistent with this opinion. VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.…
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Crowley v. State, 124 So. 3d 434 (Fla. 1st DCA 2013)…the trial court would have revoked probation absent a defendant’s ability and willful refusal to pay required costs, then the reviewing court should reverse the revocation order and remand the case for further proceedings. See Marzendorfer v. State, 16 So. 3d 957, 958 (Fla. 1st DCA 2009). Accordingly, we reverse and remand for further proceedings. REVERSED and REMANDED. PADOVANO, J., concurs. BENTON, J., concurs in result only. . The referenced Affidavit for Violation of Probation is incorrectly cited as…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Powell, 703 So. 2d 444 (Fla. 1997)
- Stephens v. State, 630 So. 2d 1090 (Fla. 1994)
- Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)
- Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)
- Mordica v. State, 618 So. 2d 301 (Fla. 1st DCA 1993)
- Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999)