Smith v. State

• Citation: 329 So.3d 256
• Decision Date: 10 November 2021
• Docket Number: No. 1D20-2969,1D20-2969
• Parties: Morgan SMITH, II, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

329 So.3d 256

Morgan SMITH, II, Appellant,

v.STATE of Florida, Appellee.

No. 1D20-2969

District Court of Appeal of Florida, First District.

November 10, 2021

Jessica J. Yeary, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Smith appeals a final order revoking his probation and sentencing him to prison. We review a trial court's decision to revoke probation for abuse of discretion. Lawson v. State, 969 So. 2d 222 (Fla. 2007). "On review of an order of revocation of probation, the appellate court first examines whether competent substantial evidence supports the trial court's finding of a willful and substantial violation." Marchan v. State , 192 So. 3d 658, 660 (Fla. 2d DCA 2016).

There was competent, substantial evidence supporting the trial court's findings. Smith absconded from the state against the terms of his probation and against his probation officer's express direction. Smith made no efforts to comply with the terms requiring him to find employment, enroll in an educational program, and enroll in a batterer's intervention program. The trial court did not abuse its discretion in revoking Smith's probation on these conditions.

However, the trial court failed to make a determination regarding Smith's ability to pay restitution and drug-testing fees, before violating his probation on those grounds. "[B]efore 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 ability to pay but has willfully refused to do so." Stephens v. State , 630 So. 2d 1090, 1091 (Fla. 1994). "Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence." Del Valle v. State , 80 So. 3d 999, 1002 (Fla. 2011). "Harmful due process errors are fundamental errors, which need not be preserved for appeal." Id. at 1004. Failure to make the requisite inquiry into Smith's ability to pay is a reversible error. The findings that Smith willfully violated these monetary conditions must be stricken from the probation order. Marzendorfer v. State , 16 So. 3d 957, 958 (Fla. 1st DCA 2009).

The record is clear that Smith's revocation was based primarily on his absconsion, which was his second time absconding from probation. The record further reflects that his...