Aidone v. State, 98-3753.

• Decision Date: 29 December 1999
• Docket Number: No. 98-3753.,98-3753.
• Citation: 763 So.2d 1127
• Parties: Anthony AIDONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

763 So.2d 1127

Anthony AIDONE, Appellant, v. STATE of Florida, Appellee.

No. 98-3753.

District Court of Appeal of Florida, Fourth District.

December 29, 1999.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

DELL, J.

On May 29, 1998, appellant Anthony Aidone was arrested for possession of cocaine. He appeals the subsequent order of the trial court revoking his probation and sentencing him to incarceration on prior convictions for simple possession of cocaine, possession with intent to deliver, and possession of drug paraphernalia. Appellant's probation officer alleged by affidavit that he violated the terms of his probation by failing to live and remain at liberty without violating the law when he was arrested for possession of cocaine. The probation officer also alleged that appellant violated probation by failing to pay the costs of his supervision, court costs, and public defender fees. The trial court revoked appellant's probation without specific findings and did not enter a separate order of revocation.

Appellant raises three points on appeal: he contends that the trial court erred by revoking his probation because it failed to enter an order specifying the particular grounds for revocation of his probation; failed to find that he had the ability to pay and willfully refused to pay the costs of supervision, court costs, and public defender fees; and failed to find that his cocaine arrest was the product of entrapment. We affirm the revocation of appellant's probation, but we remand to the trial court for further proceedings as instructed below.

We agree with appellant's argument that the trial court erred by failing to specify the particular grounds for revocation of his probation. When revoking probation, a trial court must at least specify which conditions of probation have been violated, and should also relate evidence or reasons supporting the judge's findings. See Taylor v. State, 681 So.2d 910, 910 (Fla. 4th DCA 1996)

; Mitchell v. State, 681 So.2d 891, 892 (Fla. 4th DCA 1996) (affirming revocation but remanding for entry of written order "reciting which of the allegations it relied upon for the revocation"); see also Watts v. State, 688 So.2d 1018, 1018 (Fla. 4th DCA 1997); Larangera v. State, 686 So.2d 697, 698 (Fla. 4th DCA 1996); Glendon v. State, 669 So.2d 1148, 1148-49 (Fla. 4th DCA 1996); Powell v. State, 763 So.2d 364, 366 (Fla. 4th DCA 1998). Here, the trial court filed only a "court status report" that contained the notation, "Convicted by court of allegations" and "Probation revoked." This "court status report" does not satisfy the trial court's duty to specify the grounds for the revocation of appellant's probation.

Therefore, we remand for entry of an order enumerating the grounds for revocation and providing reasons to support those findings.

Appellant also contends that revocation of his probation for failure to pay his costs of supervision, court costs, and public defender fees must be reversed because the court failed to find that he had the ability to pay and willfully refused to do so. This issue was not preserved for appeal. However, since this case must be remanded for further proceedings, we address the merits.

To revoke a defendant's probation based upon failure to fulfill a monetary condition, the trial court must specifically find that the probationer had the ability to pay and willfully refused to do so. See Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994)

; Dirico v. State, 728 So.2d 763, 767 (Fla. 4th DCA 1999); Thompson v. State, 710 So.2d 80, 81 (Fla. 4th DCA 1998); Smith v. State, 642 So.2d 1105, 1105 (Fla. 4th DCA 1994). The State bears the burden to demonstrate appellant's ability to pay and the willful nature of his refusal. Holt v. State, 385 So.2d 1133, 1134 (Fla. 5th DCA 1980). On remand, we instruct the trial court to determine appellant's ability to pay and whether he willfully refused to do so. The trial court should then make the appropriate factual findings or, if the evidence does not support such findings, vacate this ground as a basis for revocation of appellant's probation.

In his final point on appeal, appellant argues that his most recent arrest for possession of cocaine resulted from an entrapment and therefore cannot serve as a ground for revoking his probation. Appellant argues that the actions of a confidential informant who participated in the drug transaction leading to his arrest constituted entrapment. The informant allegedly loaned appellant two hundred of the six hundred dollars he used to purchase drugs from the undercover police detective. At the revocation hearing, appellant's counsel played a tape¹ of a conversation purportedly between appellant's girlfriend and his sister, in which his girlfriend stated that the informant loaned appellant two hundred dollars. The record shows that appellant's counsel stated, in response to the court's question regarding how the tape related to the case, "[S]he'll say that the...