DAVID LEDONTE WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Washington appealed the revocation of his probation for failing to maintain a GPS monitoring device and attend sex offender counseling. The court reversed, finding the evidence insufficient to establish willful violation where the violations resulted from the appellant's inability to pay and his good faith efforts to comply.
The court reversed the probation revocation, holding that the trial court was required to consider the appellant's ability to pay before revoking probation, and that the appellant's unrebutted testimony establishing good faith efforts to comply meant the trial court abused its discretion in finding willful violation.
[1] A condition of probation requiring a defendant to waive the defense of inability to pay restitution is illegal and violates due process and equal protection principles.
[2] A court must determine if a probationer has the ability to pay restitution and has willfully refused to do so before revoking probation for non-payment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As such, the trial court was required to consider appellant's ability to pay before revoking his probation.”
Establishes the legal requirement that ability to pay must be considered in probation revocation cases involving failure to pay.
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Join FLexlaw to unlock all legal intelligenceWashington was placed on probation with conditions requiring GPS monitoring and sex offender counseling attendance. He failed to maintain the GPS devi…
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Appellant challenges the revocation of his probation, arguing, among other things, that the evidence presented at the violation of probation hearing was insufficient to establish he willfully violated his probation. We agree and reverse.
The court found appellant violated two conditions of his probation by failing to (1) maintain a GPS monitoring device and (2) attend sex offender counseling. At the violation of probation hearing, appellant testified the alleged violations occurred due to his inability to pay his utility bill and the cost of counseling. Appellant testified that he had tried to obtain employment unsuccessfully, due to his prior convictions, and that he was trying to get back into school, and “there wasn’t a way for me to get the money.” In addition, appellant testified that he tried to explain his inability to pay the cost of counseling to the counseling center’s staff but they were unhelpful. The State’s witnesses corroborated that appellant violated probation due to his inability to pay his utilities and counseling fees.
As such, the trial court was required to consider appellant’s ability to pay before revoking his probation. Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994) (holding that before a probationer can be imprisoned for failure to pay, there must be a finding establishing the probationer had the inability to do so); Smith v. State, 49 So.3d 833, 834 (Fla. 1st DCA 2010); Odom *1062 v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009). In addition, because appellant’s un-rebutted testimony established he made a good faith effort to comply with the conditions of his probation, the trial court abused its discretion in finding he willfully violated his probation. Easterling v. State, 989 So.2d 1285, 1287 (Fla. 1st DCA 2008) (“Because we determine that appellant made a good faith effort to comply, we must also reverse the violation relating to failing to follow the lawful instructions of his community control officer.”). For these reasons, we REVERSE and REMAND with instructions to reinstate appellant’s probation and strike the order revoking appellant’s probation.
WOLF, DAVIS, and HAWKES, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Stephens v. State, 630 So. 2d 1090 (Fla. 1994)
- Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)
- Quinton Lavar Smith v. State, 49 So. 3d 833 (Fla. 1st DCA 2010)
- Easterling v. State, 989 So. 2d 1285 (Fla. 1st DCA 2008)