Green v. State

• Decision Date: 02 July 1993
• Docket Number: No. 92-1450,92-1450
• Citation: 620 So.2d 1126
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Week. D1530 Ladon Maurice GREEN, Appellant, v. STATE of Florida, Appellee.

Page 1126

620 So.2d 1126

18 Fla. L. Week. D1530

Ladon Maurice GREEN, Appellant, v. STATE of Florida, Appellee.

No. 92-1450.

District Court of Appeal of Florida First District.

July 2, 1993.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR CLARIFICATION

JOANOS, Judge.

The state seeks clarification of certain language in our opinion as it pertains to a probationer's duty to demonstrate an inability to comply with the various monetary conditions of probation. We grant the motion for clarification, and substitute the following for the opinion filed December 31, 1992.

Appellant, Ladon Maurice Green, challenges the revocation of his probation, based on the trial court's finding that appellant violated five conditions of his probation. We reverse.

Appellant pled nolo contendere to one count of burglary and two counts of criminal mischief, for which he was placed on probation for one year. Several special conditions of probation were required. Among others, appellant was directed to pay restitution in the amount of $1,000.00 to the victim, his ex-wife; to perform fifty hours of community service; and to pay court costs of $220.00. Subsequently, an affidavit of violation of probation was filed, charging that appellant violated: condition two of his probation, in that he was $120.00 in arrears in payment of costs of supervision; condition five of his probation, in that he was arrested and charged with grand theft; condition nine of his probation, in that he was $110.00 in arrears in payment of court costs; condition ten of his probation, in that he had completed none of his required community service; and condition eleven of his probation, in that he was $500.00 in arrears in payment of his restitution. ¹

At the hearing on the affidavit of violation of probation, the testimony of appellant's probation officer indicated that she met with appellant on November 6, 1991, to instruct him on his probation orders. As of the date of the hearing, appellant had made no payments on any of the monetary obligations of his probation, and had performed no community service hours. Over a hearsay objection, the probation officer was permitted to testify that appellant violated condition five, in that an arrest report mailed to the probation officer by a court employee indicated appellant had been arrested.

During cross examination, the probation officer acknowledged that she knew appellant had been unemployed during the entire period of his probation. On November 6, 1991, when the probation officer set up the payment schedule for court costs and restitution, she did so even though she knew appellant was still unemployed. The monthly costs of appellant's supervision were waived for September and October 1991, but costs were not waived for the following months, even though the probation officer recognized that the rules permitted continued waiver for one without ability to pay. According to the probation officer's testimony, appellant kept the appointment with a job service counselor made for him by his probation officer, and he complied with his obligations under the probation order to submit monthly reports and to keep appointments with his probation officer.

Appellant testified that he was unemployed at the time he was placed on probation. When he was released from county jail, after his arrest for the burglary and criminal mischief charges, appellant lived with his ex-wife, because he was without financial means to live elsewhere. Appellant stated he was paying court-ordered child support of $320.00 per month. Although appellant realized he would have to pay court costs, he maintained he did not know he would have to pay supervision costs of $40.00 per month. ² Appellant further stated he knew he was supposed to perform community service hours, but no one specified the minimum number of hours he was supposed to perform each month, or the service he was to perform. Appellant said he searched for jobs during the entire period. Although his probation officer wanted him to file a record of job contacts with her, appellant did not do so, because he was filing job contact lists with the unemployment office as a condition of collecting unemployment compensation benefits.

The trial court revoked probation as to condition five, finding the state established through hearsay that appellant had been arrested on March 3, 1992, and appellant failed to explain or refute the hearsay. As to condition ten, the trial court concluded that since appellant was unemployed, he had sufficient opportunity to complete his community service hours. After observing that violation of conditions five or ten alone, would be sufficient to revoke probation, the trial court further stated:

The court also finds that he violated condition 11 by not making any payments on restitution; condition 9 by not paying $220 felony cost; and condition 2 by not paying his cost of supervision. The court finds that he did have the ability to pay. Mr. Green took the stand and testified that he was drawing unemployment compensation benefits throughout the whole period of time we were talking about, so he was not without income, not without funds, he just chose not to use them as ordered by the court.

Based upon these findings, probation was revoked and appellant was sentenced to serve one year in county jail, with credit for time served.

Provisions dealing with the monetary conditions of probation are set forth in section 948.06(4), Florida Statutes (1991), which provides in part:

In any hearing in which the failure of a probationer ... to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his inability to pay restitution or the cost of supervision, it is incumbent upon him to prove by clear and convincing evidence that he does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. If the probationer ... cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment....

To warrant a revocation of probation for failure to comply with the monetary conditions of a probation order, the state is required to show that the violation was willful. Jordan v. State, 610 So.2d 616 (Fla. 1st DCA 1992). Once a willful violation has been shown, the burden shifts to the probationer to show by clear and convincing evidence that he or she did not have the ability to pay. Morgan v. State, 491 So.2d 326, 327 (Fla. 1st DCA 1986); Guardado v. State, 562 So.2d 696 (Fla. 3d DCA), review denied, 576 So.2d 287 (Fla.1990); Word v. State, 533 So.2d 893 (Fla. 3d DCA 1988).

Any probation violation sufficient to trigger revocation "must be substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence." Johnson v. State, 561 So.2d 1254, 1255 (Fla. 2d DCA 1990). Accord Washington v. State, 579 So.2d 400, 402 (Fla. 5th DCA 1991). It is incumbent upon the state to establish that a defendant willfully violated the terms of his probation. Jacobsen v. State, 536 So.2d 373 (Fla. 2d DCA 1988). See also Yancey v. State, 547 So.2d 1040, 1042 (Fla. 1st DCA 1989) (revocation of probation for violation of condition requiring probationer to submit himself for mental health evaluation and...