GEORGE CURTIS SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a probation modification where the trial court extended Smith's probation period by six months after finding he was not in willful violation of a restitution condition due to lack of ability to pay. The court held that absent a finding of probation violation, the trial court lacked statutory authority to extend the probation period.
The court held that the trial court lacked authority to extend the probation period because Section 948.06, Florida Statutes, permits extension of probation only after a finding that there has been a violation of probation. Since the court found no violation, it was without authority to extend the probationary period.
[1] A court cannot extend a period of probation absent a finding that the probationer has violated the terms of probation.
[2] A court may modify the conditions of probation, including revoking a restitution requirement and substituting community service, when a probationer demonstrates an inabil…
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Join FLexlaw to unlock all legal intelligence“the court found that the appellant did not have the ability to make payments and therefore properly held that the appellant was not in willful violation”
Establishes the trial court's finding that negates willfulness required for a probation violation
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Join FLexlaw to unlock all legal intelligenceSmith was charged with violating a probation condition requiring restitution payments to a crime victim. At the probation violation hearing, Smith tes…
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NESBITT, Judge.
Appellant was charged by affidavit with the violation of a condition of his probation; to wit: failure to make restitution payments to the crime victim. A probation violation hearing was held. At the hearing, the appellant testified that: he had not worked in about four months; he had diabetes; prior to that time he worked for about five weeks as a security guard; his regular work was selling insurance but he had not been employed in that occupation for about three years; appellant and his wife had two teenage children and he paid rent in the amount of fifty-six dollars per week. The only income coming into the household was his wife’s salary of approximately one hundred and sixty-one dollars bi-weekly plus twenty-eight dollars a month which he received from Social Security for [*CCCXXXI] medicines. Appellant stated that his diabetes had affected his memory and because of his illness “there isn’t too much work I can do.”
The court found that appellant had failed to make restitution. It also found that the appellant did not have the ability to make payments and therefore properly held that the appellant was not in willful violation. Young v. State, 370 So. 2d 832 (Fla. 2d DCA 1979); Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978); Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978). Thereafter the court modified his probation and extended it six months. The condition which required restitution was revoked and appellant was required to donate one hundred hours to the Salvation Army.
Section 948.06, Florida Statutes (1977) is the only authority for extension of the period of probation. The statute provides that the period of probation may be continued but only after notice and hearing and a finding that there has been a violation of probation. Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976). Appellant was afforded notice and a hearing; however, the court specifically found that there was no violation. Absent such a finding, the court is without authority to extend appellant’s probationary period.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Knapp v. State, 405 So. 2d 786 (Fla. 4th DCA 1981)…ication, as a modification of the original probation order. Probation orders are not subject to modification except for violation of conditions and then only upon notice and hearing. Buckbee v. State, 378 So. 2d 39 (Fla.3d DCA 1979); Smith v. State, 377 So. 2d 250 (Fla.3d DCA 1979). The judgment of the trial court dated October 10, 1980 is vacated. BERANEK and HERSEY, JJ., concur.…
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Frederick v. State, 405 So. 2d 1344 (Fla. 3d DCA 1981)…ed the defendant to increased punishment for the same offense, Troupe v. Rowe, 283 So. 2d 857 (Fla.1973), and (b) alternatively, was an unauthorized extension of the defendant’s probation, see Section 948.06, Florida Statutes (1979); Smith v. State, 377 So. 2d 250 (Fla.3d DCA 1979); Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976). The defendant’s appeals from the judgments and sentences imposed in all cases except Circuit Court Case No. 76-2390 are affirmed. Affirmed in part; reversed in part, with…
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Hewett v. State, 588 So. 2d 635 (Fla. 5th DCA 1991)…aring on August 10,1990, Hew-ett’s defense was his inability to pay. The trial court subsequently entered an order extending the term of probation for two years to allow Hewett an opportunity to make the past-due payments. Relying on Smith v. State, 377 So. 2d 250 (Fla. 3d DCA 1979), Hewett argues that the court should not have ordered the extension when no violation was specifically found. In Smith, the district court held that a period of probation can be extended only upon a showing of a willful violation…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)
- Verle Vernelle Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976)
- Young v. State, 370 So. 2d 832 (Fla. 2d DCA 1979)