Brown v. State
| Citation | 6 So.3d 671 |
| Decision Date | 13 March 2009 |
| Docket Number | No. 2D06-1615.,2D06-1615. |
| Parties | Taurean Jamaal BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
Taurean Jamaal Brown appeals the revocation of his probation for driving while license suspended or revoked as a habitual traffic offender. We affirm the revocation of probation and resulting sentence but remand for the trial court to strike the finding of a violation of condition 2 from the revocation order.
The evidence presented at the revocation hearing was sufficient to prove that Brown violated conditions 4 and 50 of his probation, which included the new law violation of sale of cocaine. However, before finding that Brown violated condition 2, failure to pay the cost of supervision, the trial court was required to find that Brown had the ability to make the required payments. See Neves v. State, 502 So.2d 1343, 1344 (Fla. 2d DCA 1987); Coxon v. State, 365 So.2d 1067, 1068 (Fla. 2d DCA 1979).
At the revocation hearing, the probation officer testified that Brown had other monetary obligations in addition to the cost of supervision and that Brown was unemployed. Further, Brown had been declared indigent for the revocation proceedings. The trial court found that Brown had failed to pay his cost of supervision of $80 that had accrued as of June 30, 2004. The trial court found that Brown "had money" because he got $80 when he sold the cocaine to an undercover detective on June 15, 2004. Based on the evidence that Brown was unemployed and had other monetary obligations in connection with his probation, the evidence that he received $80 in an undercover drug deal was insufficient to prove that he had the ability to pay the cost of supervision.
Nevertheless, we affirm the revocation of probation and sentence because the trial court would have revoked probation based on the new law violation alone. See Underwood v. State, 455 So.2d 1133, 1133 (Fla. 2d DCA 1984). We remand for the trial court to strike the finding of a violation of condition 2 from the revocation order. See id. at 1134.
Affirmed and remanded.
To continue reading
Request your trial
-
Del Valle v. State
......3d 954, 955 (Fla. 5th DCA 2009) ("It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so."); Brown v. State , 6 So. 3d 671, 672 (Fla. 2d DCA 2009) ("[B]efore finding that Brown violated condition 2, failure to pay the cost of supervision, the trial court was required to find that Brown had the ability to make the required payments."); Shepard , 939 So. 2d at 314 ("[W]here the violation alleged ......
-
Del Valle v. State
...presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so.”); Brown v. State, 6 So.3d 671, 672 (Fla. 2d DCA 2009) (“[B]efore finding that Brown violated condition 2, failure to pay the cost of supervision, the trial court was requir......
-
Cambas v. Dept. of Business and Prof. Reg.
...... State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933) (citations omitted). "[C]rimes constituting violations of one's duties in ......
-
Green v. State, 2D08-2533.
......State, 19 So.3d 377 (Fla. 2d DCA 2009) (directing trial court to strike findings that defendant had violated conditions 1, 3, and 10 of probation but affirming revocation and sentences because defendant's new law violation alone was substantial enough to warrant revocation of probation); Brown v. State, 6 So.3d 671, 672 (Fla. 2d DCA 2009) (directing trial court to strike violation of condition 2 of probation but affirming revocation and sentence on remaining grounds "because the trial court would have revoked probation based on the new law violation alone"); Matthews v. State, 943 So.2d ......
-
Judgment and sentence
...had the ability to pay his cost of supervision, and the court errs in finding a violation based on the failure to pay COS. Brown v. State, 6 So. 3d 671 (Fla. 2d DCA 2009) Defendant cannot be found in violation of probation for failing to comply with his officer’s instructions when the offic......