Dirico v. State
Decision Date | 10 February 1999 |
Docket Number | No. 97-3774,97-3774 |
Citation | 728 So.2d 763 |
Parties | Diane DIRICO, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
We grant appellant's motion for rehearing, withdraw our opinion of October 28, 1998, and issue the following in its place.
In 1995, pursuant to the terms of a negotiated plea, Dirico pled guilty to charges of engaging in an organized scheme to defraud, theft, and the fraudulent use of a credit card. The parties arrived at the plea colloquy with an agreement in-hand, providing for probation rather than imprisonment. A special condition of Dirico's probation required that she pay restitution in the amount of $212,500. The agreement provided that Dirico would pay the $212,500 by making monthly payments of $275.00, a lump sum payment of $10,000 within ten months of the date of the plea, and additional lump sum payments of $10,000 every two years thereafter. Additionally, the plea agreement specifically provided that "DEFENDANT SPECIFICALLY WAIVES ABILITY TO ARGUE INABILITY TO PAY AND ACKNOWLEDGES THAT FAILURE TO MEET THIS RESTITUTION SCHEDULE WILL RESULT IN THE IMPOSITION OF THE SUSPENDED SENTENCE...." When Dirico failed to make the scheduled payments, an affidavit of violation was filed and a violation of probation hearing held. The trial court found that Dirico had the ability to pay the restitution, revoked her probation, and imposed the suspended sentence.
On appeal, Dirico contends that there was insufficient evidence to support the trial court's finding of ability to pay. Like the appellant, we believe that the evidence presented at the violation of probation hearing was insufficient to support a finding of ability to pay. The State argues that the trial court's order should be affirmed even if the evidence does not support appellant's ability to pay the restitution amount because the terms of the negotiated plea specifically waive the requirement that the State establish Dirico's ability to pay. Thus, the question that is presented is whether such a condition of probation is illegal. We find that it is, and reverse the revocation of probation.
Then, in 1988, the Third District was faced with the issue. In Hamrick v. State, 519 So.2d 81 (Fla. 3d DCA 1988), the trial judge entered an order revoking Hamrick's probation without making a finding that Hamrick had the ability to make the restitution payments ordered and had wilfully refused to do so "because, when the probation was imposed, Hamrick had specifically agreed to make restitution regardless of his ability to pay." Id. at 81. When his probation was revoked, Hamrick appealed. The Third District agreed with the State's concession that "the defendant's purported waiver of the right to resist revocation because of an inability to conform with the condition is invalid and unconstitutional." Id.
519 So.2d at 82. In a footnote, the Third District noted that the only authority for the holding in Brushingham was Doherty and that "[t]he majority opinion in Doherty specifically confines its holding to the situation involved there, in which the defendant affirmatively undertook to make restitution as a condition of his later being given a lenient sentence." Id. at 82 n. 3.
Five years later, the validity of a defendant's waiver of the defense of inability to pay as a condition of probation was again before this court. In Stephens v. State, 614 So.2d 19 (Fla. 4th DCA 1993), overruled, 630 So.2d 1090 (Fla.1994), the defendant pled nolo to grand theft. The trial court withheld adjudication and placed Stephens on probation with the special condition of probation that he make restitution in the amount of $100,000. Stephens violated his probation. At the revocation hearing, the State offered Stephens one year's incarceration in county jail followed by ten years' probation. The agreement provided that (1) Stephens would pay one half of the $100,000 in restitution within five years and all of the restitution within nine and one half years; (2) if Stephens paid $50,000 in restitution, his incarceration would terminate at five months; and (3) if Stephens paid the entire $100,000, his probation would terminate in five years. See 614 So.2d at 20. Although not a part of the negotiated plea, the trial judge conditioned acceptance of the plea upon Stephens' agreement to waive the defense of inability to pay. Stephens agreed to the condition. When his probation was later revoked, Stephens contended that the trial court had erred in conditioning acceptance of his plea upon his waiver of "his constitutional right not to be imprisoned for a debt." With little discussion, this court affirmed on the authority of Brushingham, but certified conflict with Hamrick.
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