Shepard v. State

• Citation: 939 So.2d 311
• Decision Date: 18 October 2006
• Docket Number: No. 4D05-2636.,4D05-2636.
• Parties: Dwayne SHEPARD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

939 So.2d 311

Dwayne SHEPARD, Appellant, v. STATE of Florida, Appellee.

No. 4D05-2636.

District Court of Appeal of Florida, Fourth District.

October 18, 2006.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

SHAHOOD, J.

This is an appeal from a disposition order revoking probation. Appellant Dwayne Shepard ("Shepard") raises two issues in this appeal. First, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because the State failed to prove his ability to pay those costs. Second, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because he had until the end of his probationary period to pay. We reverse and remand based upon the State's failure to prove that Shepard had the ability to pay the required costs. We affirm as to the second issue, finding the trial court's order that Shepard pay monthly installments sufficient to sustain the trial court's finding of guilt as to that allegation.

Shepard was originally charged in 2002 with one count of lewd or lascivious battery and one count of contributing to the delinquency of a minor. In 2003, Shepard entered a plea of no contest. He was sentenced to four years of sex offender probation for the lewd or lascivious battery count and time served on the contributing to the delinquency of a minor count.

In December 2004, Shepard was charged with violating his probation. The amended affidavit alleged eight separate probation violations. Allegations II and III concerned Shepard's alleged failure to report to probation on December 3, 2004. Allegation IV concerned Shepard's alleged failure to pay costs of supervision in the amount of $113.06. Allegation V concerned Shepard's alleged failure to pay court costs in the amount of $125.55.¹

Shepard's probation officer, Tony Porter, testified at the final violation of probation hearing. Porter had instructed Shepard "word-for-word" on each of the conditions of Shepard's probation. Shepard was required to report to probation on the third day of each month, and Porter testified that Shepard failed to report on December 3, 2004. The last contact that Porter had with Shepard was a telephone conversation on November 29, 2004.

Porter further testified that as a condition of probation, Shepard was required to pay $60.30 per month in court costs and costs of supervision. On November 3, 2004, Shepard made a payment of $70.00. Porter believed that Shepard previously made other payments, because otherwise his arrearage at the time of the hearing would have been significantly higher. Porter did not have a record of the other payments at the time of the hearing.

Shepard told Porter "in spurts" that he was having trouble finding employment. Shepard could have worked for a landscaping business owned by his father, but instead he eventually found employment somewhere else. Shepard also told Porter that he was having trouble paying costs. After the State rested, the defense called Porter who testified that Shepard was in custody from June 8, 2004 to October 22, 2004.

The trial court found Shepard guilty of allegations II and III, for failing to report to probation on December 3, 2004.² As to allegations IV and V, regarding Shepard's payment obligations, Shepard's counsel argued that the State failed to prove that he had the ability to pay these costs. Defense counsel also argued that since Shepard was in custody from June to October 2004, his violation was not substantial or willful. The trial court cited section 948.06(5), Florida Statutes, for the rule that in any hearing in which there is an allegation of failure to pay the costs of supervision, it is incumbent upon the probationer to prove by clear and convincing evidence he does not have the resources. The trial court found that Shepard had failed to meet this standard and found him guilty on allegations IV and V.

Shepard raises two points on appeal. Initially, he argues that the trial court erred in finding him guilty of violating probation for failing to pay costs because the State failed to prove his ability to pay. We agree.

Shepard argues that the trial court erroneously required him to prove his inability to pay court costs and costs of supervision by clear and convincing evidence. He further argues that the burden was on the State to prove that the violation of probation was willful by proving his ability to pay, and the State did not meet this burden. The State claims that Shepard had the burden to prove his inability to pay costs.

It is well-settled that probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation. See Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation. See Blackshear v. State, 771 So.2d 1199, 1200 (Fla. 4th DCA 2000).

This case demonstrates the tension between the State's burden to show that the probationer willfully, substantially, and deliberately violated a condition of his probation, and the requirement of section 948.06(5), Florida Statutes, that a probationer asserting inability to pay must prove such inability by clear and convincing evidence. This section, upon which the trial court relied, provides in pertinent part:

In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision ... is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she 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.

§ 948.06(5), Fla. Stat. (2003).

Shepard argues that despite the plain language of the statute, the State's overriding burden to prove that the probation violation was willful and deliberate requires that the State show that the probationer had the ability to pay the costs. In Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994), the Florida Supreme Court considered whether a probationer could legally have his probation revoked for failure to pay court-ordered restitution. The court examined the United States Supreme Court's holding in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the Court stated that it would be contrary to the fundamental fairness required by the Fourteenth Amendment to deprive a probationer of his conditional freedom for failure to pay fines or restitution in probation proceedings, if the probationer could not pay despite bona fide efforts to acquire the resources to do so. 461 U.S. at 672-73, 103 S.Ct. 2064. Following the reasoning of Bearden, the Florida Supreme Court in Stephens held that "before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the...