Osta v. State, 5D03-2342.
| Decision Date | 13 August 2004 |
| Docket Number | No. 5D03-2342.,5D03-2342. |
| Citation | 880 So.2d 804 |
| Parties | Sami M. OSTA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David R. Damore of Damore and Rawlins, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
Sami M. Osta appeals the trial court's order adjudicating him guilty of violating his probation, revoking his probation, and sentencing him accordingly. Concluding that the State proved by a preponderance of the evidence that Osta willfully violated substantial conditions of his probation, we affirm.
In 1997, Osta entered a plea of nolo contendere to the crimes of failing to remit state taxes and grand theft in the third degree. He was sentenced to a term of five years of probation with his adjudication of guilt withheld. Additionally, he was ordered to pay restitution in the amount of $62,529.96 to Florida's Department of Revenue.
In 2000, Osta was charged with violating his probation by failing to pay restitution, in that he was delinquent on his payment plan in the amount of $24,000.00, and had an outstanding balance in excess of $58,000.00. The narrative of the violation alleged that Osta had made sporadic payments towards his court ordered restitution in amounts ranging from $25.00 to $400.00, with two periods of time where he made no payments for two months in a row.
At the violation of probation hearing held in June 2003, Osta's probation officer testified as to the outstanding restitution balance, to the fact that Osta claimed to have been self-employed at a restaurant for most of his probation period, and that during his probationary period Osta had been issued several permits by the trial court allowing him to travel out of state for business purposes. In addition, the probation officer testified that Osta had signed an offender financial agreement in 2001 agreeing to pay $1,482.90 per month, but that Osta had never made any payments in that amount. He further stated that Osta never made a payment towards restitution in an amount greater than $500.00, and that Osta had never informed him that he was registered with the State as a president, director, or registered agent of sixteen corporations.
Osta was then called to testify. With regards to the sixteen corporations, Osta stated that no business activity was taking place in several of the corporations, and that a few of the businesses had been dissolved. He stated that one of the corporations owned a small lot in Daytona but that all of the corporations were "shell corporations," and he never conducted business in them. Osta testified that at the time he was placed on probation he and his brother owned two restaurants. Finally, Osta admitted that he had not made a payment on his restitution since May of 2002, claiming he did not believe that he owed the State the money since he was allowed to make meager payments or even skip payments for nearly three years before the affidavit of violation was filed.
In closing argument, the State maintained that it had met its burden of proving that Osta had violated the terms of his probation. The State contended that Osta was a wheeler-dealer who put together shell corporations to hide his ability to pay, and that Osta's own testimony revealed his failure to make payments was not the result of his inability to pay, but rather his belief that he did not owe the State any money. The State further argued that if Osta could afford to travel out of state, he could afford to pay his restitution. Osta responded by arguing that the State failed to prove that he had the assets to pay the restitution amount. Upon review the trial court adjudicated Osta guilty of violating his probation, finding by a preponderance of the evidence that he did violate probation in that he could have paid much more towards his restitution than he did, and that the violation was willful and substantial. The trial court terminated Osta's probation, adjudicated him guilty for failing to remit sales tax and grand theft, and sentenced him to three days time served on each count. Additionally, the trial court entered a money judgment for the...
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