MICHAEL ANTHONY GIAMBRONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationer's failure to pay a monetary obligation as a condition of probation cannot lead to revocation without a finding that the failure was willful, requiring proof of ability to pay and purposeful non-payment.
[1] A trial court must find that a probationer's failure to pay a monetary obligation was willful before revoking probation for non-payment.
[2] A trial court must inquire into a probationer's ability to pay a monetary obligation and make an explicit finding of willfulness based on the greater weight of the eviden…
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was extended and modified due to failure to make court-ordered payments for supervision costs. The trial court found a violation…
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Appellant seeks review of an order extending and modifying his drug offender probation based upon his failure to make the court-ordered payments for the cost of his supervision. We reverse.
In 2009, Appellant was placed on drug offender probation and ordered to pay “$20 per month, as well as a 4% surcharge, toward the cost of [his] supervision” as a condition of probation. In February 2012, Appellant’s probation officer filed an affidavit alleging that Appellant violated the conditions of his probation by failing to make the cost-of-supervision payments (Condition 2) and by testing positive for Hydrocodone (Condition 7). With respect to the alleged violation of Condition 2, the affidavit stated that Appellant was $565.77 in arrears on his supervision costs.
Appellant pled not guilty to the violations. The case proceeded to a hearing at which the trial court found Appellant guilty of violating Condition 2, but not guilty of violating Condition 7. The trial court reinstated Appellant’s probation, extending it for an additional three years and adding new conditions requiring Appellant to enroll in and complete a drug treatment program, dispose of all expired medications, and provide proof of any new prescriptions to his probation officer.
We review the trial court’s determination that Appellant violated his probation for an abuse of discretion. See Odom v. State, 15 So.3d 672, 675 (Fla. 1st DCA 2009).
In Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011), the supreme court explained that before revoking probation for failure to pay a monetary obligation that is a condition of probation, the trial court “must find that the defendant’s failure to pay was willful — i.e., [1] the defendant has, or has had, the ability to pay the obligation and [2] purposefully did not do so.” Accordingly, the trial court is required to “inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence.” Id. at 1011 (emphasis in original). Here, the trial court found that Appellant had the ability to pay the cost of supervision, but the court did not make a finding that his failure to do so was willful.
Del Valle precludes us from inferring a finding of willfulness from the trial court’s determination that Appellant violated his probation. Id. (“A probationer cannot have his probation constitutionally revoked absent an inquiry into ability to pay and a specific finding of willfulness, and a trial court’s failure to conduct such an inquiry or make such a finding cannot be deemed harmless.”) (emphasis in original). But even if such a finding could be inferred, we would reverse because the evidence was insufficient to support the trial court’s finding that Appellant had an ability to pay.
Almost all of the testimony, evidence, and argument presented at the hearing focused on the alleged violation of Condition 7. The only evidence presented on the alleged violation of Condition 2 and Appellant’s financial situation was testimony from his probation officer. Neither the State, nor the trial court inquired of Appellant as to his income or expenses or the reason for his failure to make the required payments toward the cost of his supervision.
We conclude that the probation officer’s testimony was insufficient to demonstrate that Appellant had an ability to pay the *1281cost of supervision. The officer testified that he had supervised Appellant for three years and, during most of that time, Appellant was “not bringing in much [money]” working on his father’s blueberry farm. The officer testified that Appellant told him that he started working for his brother several weeks prior to the filing of the affidavit of violation of probation and that that Appellant expected that “his monthly income would probably be around $2,000.”* (emphasis added). However, no evidence was presented as to Appellant’s actual monthly income.
In sum, because the evidence was insufficient to support the trial court’s finding that Appellant had the ability to pay the cost of his supervision and because the trial court did not make an express finding that his failure to pay was willful, the trial court abused its discretion in finding Appellant in violation of his probation. Accordingly, we reverse the order extending and modifying Appellant’s probation and remand for reinstatement of the prior probationary term.
REVERSED and REMANDED.
VAN NORTWICK and ROWE, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Crowley v. State, 124 So. 3d 434 (Fla. 1st DCA 2013)…to pay court costs without first explicitly finding that a defendant had the ability to pay and willfully refused to do. See Del Valle v. State, 80 So. 3d 999 (Fla.2011); Odom v. State, 15 So. 3d 672, 678-679 (Fla. 1st DCA 2009); Giambrone v. State, 109 So. 3d 1279 (Fla. 1st DCA 2013). In the case before us, the trial court did not make an explicit finding that Crowley had the ability to pay, nor that he willfully refused pay. This court is precluded “from inferring a finding of willfulness from the trial cou…1 / 2
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Bradford Williams v. State, 165 So. 3d 870 (Fla. 1st DCA 2015)…ty to pay restitution and that he willfully failed to do so, and we . cannot infer such a finding from the trial court’s determination that Appellant violated his probation. See Del Valle v. State, 80 So. 3d 999, 1011 (Fla.2011); Giambrone v. State, 109 So. 3d 1279, 1280 (Fla. 1st DCA 2013). Because we are unable to determine whether the trial court would have imposed the same sentence for the other violation found by the court, we remand for further proceedings. See Marzendorfer v. State, 16 So. 3d 957, 958 (…
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Henderson v. State, 133 So. 3d 630 (Fla. 1st DCA 2014)…presented evidence tending to show that Ms. Henderson had the means to pay, the trial court failed to make explicit findings of willfulness as required by the caselaw. See Del Valle v. State, 80 So. 3d 999, 1011, 1015 (Fla.2011); Giambrone v. State, 109 So. 3d 1279, 1280 (Fla. 1st DCA 2013). Because it is clear from the record that the trial court would have revoked Ms. Henderson’s probation based solely on her new law violations (probation condition five), we affirm the revocation of her probation. See Boye…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- del Valle v. State, 80 So. 3d 999 (Fla. 2011)
- Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)