Robinson v. State, 2D99-3799.

Citation773 So.2d 566
Decision Date13 October 2000
Docket NumberNo. 2D99-3799.,2D99-3799.
PartiesDanny ROBINSON, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Danny Robinson appeals the order revoking his court-ordered probation, contending that the proof adduced by the State at the hearing was insufficient to support a finding of a violation of probation as a matter of law. Although he raises several meritorious contentions, there remain sufficient willful and substantial violations to support the trial court's determination to revoke his probation. Therefore, we affirm.

First, the trial court found that Mr. Robinson violated condition (2) of his probation by failing to pay the costs of his supervision and condition (10) by failing to pay court-ordered restitution. In a probation revocation proceeding, a trial court is required to investigate the reasons why a probationer has failed to pay a fine or restitution. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)

. The Florida Supreme Court enunciated this principle in Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994): "[B]efore a person on probation can be imprisoned for failing to make restitution, there must be a determination that the person has, or has had, the ability to pay but has willfully refused to do so." See also Cherry v. State, 718 So.2d 294, 295 (Fla. 2d DCA 1998). We interpret these cases as requiring the State to bring forth evidence of the probationer's ability to pay to demonstrate willfulness, a necessary element to prove a violation. See Jordan v. State, 610 So.2d 616, 618 (Fla. 1st DCA 1992); Yancey v. State, 547 So.2d 1040, 1041 (Fla. 1st DCA 1989).

Here, the State brought forth no record evidence showing that Mr. Robinson had the ability to pay either his costs of supervision or restitution. Although the evidence demonstrated that Mr. Robinson had made payments reducing the total amount due on his restitution and costs and that there remained a balance due, nothing in the record indicated that these payments were insufficient in that he was able to pay a greater amount. Evidence consisting of only the amount due is inadequate to prove an ability to pay and, hence, inadequate to prove a willful violation. Accordingly, due to the failure of proof, Mr. Robinson was entitled to a favorable determination on the alleged violations of conditions (2) and (10).

The trial court also found that Mr. Robinson violated condition (5), which required him to live and remain at liberty without violating the law. The only evidence on which the court relied to make this finding was Mr. Robinson's admission to a deputy sheriff that he was a "crackhead." While perhaps indicative of Mr. Robinson's propensity to violate the law, the admission fails to prove an actual violation. Generally, this type of violation requires proof of a date, a location, and actual possession or use of an illegal drug. Again, because of a failure of proof, the charges as to condition (5) should have been dismissed.

Finally, the State alleged and the trial court found that Mr. Robinson had violated condition (1) by failing to...

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20 cases
  • Blackwelder v. State
    • United States
    • Court of Appeal of Florida (US)
    • 1 Junio 2005
    ...Reed v. State, 865 So.2d 644, 647 (Fla. 2d DCA 2004); Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003); Robinson v. State, 773 So.2d 566, 567 (Fla. 2d DCA 2000). Moreover, the State does not meet its burden merely by introducing evidence that establishes the specific amount the proba......
  • Mabrey v. Florida Parole Com'n
    • United States
    • Court of Appeal of Florida (US)
    • 7 Noviembre 2003
    ...a necessary element to prove a violation, the State must present evidence of the probationer's ability to pay. See Robinson v. State, 773 So.2d 566, 567 (Fla. 2d DCA 2000); Cherry v. State, 718 So.2d 294, 295 (Fla. 2d DCA 1998); Haynes v. State, 571 So.2d 1380, 1381 (Fla. 2d DCA 1990). The ......
  • Ewell v. State, 5D02-3067.
    • United States
    • Court of Appeal of Florida (US)
    • 22 Agosto 2003
    ...2d DCA 2002)(no willful and substantial violation; state failed to show defendant had ability to pay restitution); Robinson v. State, 773 So.2d 566 (Fla. 2d DCA 2000)(no willful and substantial violation where balance remained but defendant made payments and nothing indicated he could pay g......
  • Edwards v. State, 5D03-3453.
    • United States
    • Court of Appeal of Florida (US)
    • 4 Febrero 2005
    ...to pay restitution or costs, the State must adduce evidence of her ability to pay to demonstrate willfulness. Robinson v. State, 773 So.2d 566, 567 (Fla. 2d DCA 2000). The original order imposing restitution required the defendant to immediately pay $312,015.08 to State Farm. There are no f......
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