Bass v. State, BD-72
| Decision Date | 09 August 1985 |
| Docket Number | No. BD-72,BD-72 |
| Citation | 10 Fla. L. Weekly 1923,473 So.2d 1367 |
| Parties | 10 Fla. L. Weekly 1923 Roger Lee BASS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
C. Richard Parker, Public Defender, and Paul R. Silverman, Asst. Public Defender, Gainesville, for appellant.
Jim Smith, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., for appellee.
Roger Lee Bass appeals from the trial court's order revoking his probation. The trial court found that Bass violated the condition of his probation which required him to "work diligently at a lawful occupation," and the conditions which required him to make restitution for victim injury and to pay a fine. Bass contends the trial court erred (1) in finding him in violation of the employment condition of probation solely on the basis of hearsay evidence; (2) in finding him in violation of the restitution and fine conditions of probation without making a finding that he had the ability to pay; and (3) in finding him in violation of the conditions of probation prior to expiration of the term of that probation. We reverse and remand with directions.
On July 3, 1983, Bass was arrested and charged with aggravated battery. On October 17, 1983, he entered a negotiated plea of guilty to a charge of aggravated assault, a lesser included offense of the aggravated battery charge. Bass was adjudicated guilty and placed on a three year term of probation, subject to general and special conditions. On August 8, 1984, an affidavit of probation violation was filed against Bass, charging (1) that he had violated Condition (H) of his probation which required him to work at a lawful occupation; (2) that he had violated Special Condition (K) of his probation which required him to make "restitution to Alachua General Hospital in the amount of $662.61 during period of probation as directed by probation supervisor"; and (3) that he had violated Special Condition (L) which required him to pay a fine of "$500 during term of probation, as directed by probation supervisor."
Evidence adduced at the probation revocation hearing demonstrated that Bass had been unemployed from November 21, 1983--the date he was placed on probation--until June 8, 1984. Bass began working at a Waffle House restaurant on June 8, 1984, and his employment was terminated July 23, 1984. Bass's probation supervisor testified that the Waffle House manager indicated to him (the probation supervisor) that Bass's employment was terminated because he reported to work late on a routine basis, and sometimes failed to show up for work at all. The probation supervisor stated that Bass had acknowledged he was often late in reporting to work, giving as reasons that his place of employment was a considerable distance from his residence and he was dependent upon a bicycle for transportation. It was undisputed that from the date Bass was placed on probation until the affidavit charging probation violations was filed, he made no payments on the fine or the restitution--both of which had been imposed as special conditions of probation.
The trial court found that Bass had violated Conditions (H), (K), and (L) of his probation, and sentenced him to a two-year term of Community Control. In addition, Bass was ordered to pay restitution in the amount of $662.61 to Alachua General Hospital at the rate of $50 a month, and to pay a fine of $500 at the rate of $30 a month.
Bass's contention that the trial court erred in finding him in violation of the employment condition solely on the basis of hearsay evidence is without merit. The admission of hearsay evidence in revocation proceedings is not error. Cuciak v. State, 410 So.2d 916, 918 (Fla.1982). Bass is correct in arguing that a probation revocation may not be premised solely on the basis of hearsay evidence. Turner v. State, 293 So.2d 771 (Fla. 1st DCA 1974). However, the evidence supporting the violation of the employment condition was a combination of non-hearsay admissions and personal observations, as well as hearsay similar to the situation in Miller v. State, 444 So.2d 523 (Fla. 1st DCA 1984).
Bass's argument that the trial court could not find him in violation of any of the payment requirements prior to the expiration of the probation term is also without merit. Proceedings to revoke probation must be commenced prior to the expiration of probation. Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1981); Mounts v. State, 421 So.2d 22 (Fla. 5th DCA 1982). In addition, the language of the payment conditions of the probation required Bass to pay as directed by his probation supervisor. It is clear that this language required installments during the probation period. There is absolutely no requirement that the trial court had to ignore Bass's failure to pay until the probation period ended.
However, Bass is correct in his point that the trial court erred in finding him in violation of the restitution and fine conditions of probation without making a finding that he had the ability to pay.
Restitution is a trial court option which may operate in conjunction with punishment, pursuant to Section 775.089(1), Florida Statutes (1983), or as a condition of probation pursuant to Section 948.03(1)(g), Florida Statutes (1983). Section 775.089(1) contains the proviso that restitution may be ordered "if the defendant is able or will be able to make such restitution." There is authority, however, for the proposition that this safeguard is not available if the probation resulted from a negotiated plea, "which was then voluntarily and intelligently accepted by [the defendant] in open court." Pollock v. Bryson, 450 So.2d 1183, 1186 (Fla. 2d DCA 1984), citing G.H. v. State, 414 So.2d 1135 (Fla. 1st DCA 1982). In such circumstances, which pertain in the instant case, the probationer is deemed to have waived the protection of Section 775.089(1) at the time he entered into the plea agreement.
The cases hold uniformly that when probation is conditioned upon payment of restitution, or payment of costs of supervision, the trial court should make a factual determination regarding the probationer's ability to pay. Sampson v. State, 453 So.2d 919 (Fla. 1st DCA 1984); Gammon v. State, 451 So.2d 1042 (Fla. 1st DCA 1984); Winfield v....
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