Strickland v. People
| Decision Date | 07 May 1979 |
| Docket Number | No. C-1467,C-1467 |
| Citation | 594 P.2d 578,197 Colo. 488 |
| Parties | Dale Robert STRICKLAND, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, Denver, for petitioner.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David Schwartz, Asst. Atty. Gen., Denver, for respondent.
The petitioner, Dale Robert Strickland, was charged on September 11, 1975, with theft of a rental car. Pursuant to a stipulation under section 16-7-403(2), C.R.S.1973, petitioner entered a plea of guilty to the charge. The District Court of El Paso County ordered a deferred sentence, conditioned upon two years probation. As one of the conditions of probation, the petitioner was ordered to pay restitution of $150 per month, such payments to commence February 28, 1976.
On September 23, 1976, the probation department filed a petition to revoke probation in the district court alleging that the petitioner had failed to make any restitution payments whatsoever. A hearing was held on these alleged probation violations. The court found that the petitioner had worked at different times, that he had gotten at least ten paychecks of approximately $100 each, and that he had paid nothing in fulfillment of his restitution obligations. It was undisputed that he was unemployed at the time of the revocation hearing, and the court made no finding as to his ability to pay at that time. The court revoked probation.
The petitioner asserts on appeal that the district court's failure to make findings as to his "present ability to pay" that is, at the time of the revocation hearing constituted reversible error. He cites as controlling on that question this court's decision in People v. Romero, 192 Colo. 106, 559 P.2d 1101 (1976).
The Colorado Court of Appeals reversed the trial court, holding that Romero, supra, was inapposite, People v. Strickland, 40 Colo.App. 121, 575 P.2d 436 (1977), but it remanded the matter to the trial court for a further hearing to determine whether the defendant had the ability to pay during the time he was employed. We granted certiorari to clarify Romero. We now affirm the court of appeals.
In People v. Silcott, 177 Colo. 451, 494 P.2d 835 (1972), this court adopted the rule that "a finding of ability to pay is necessary before probation is revoked." Id. at 454, 494 P.2d 837. Ability to pay is measured by three factors: (1) that a job for which the probationer is qualified is available; (2) that the job would produce an income adequate to meet his obligations; And (3) that the probationer unjustifiably refuses to take it. People v. Romero, supra.
The reason for requiring that ability to pay be established before probation can be revoked is to allow revocation only where the probationer Unreasonably or Willfully fails to comply with the terms of his probation. With this foundation laid, the principle of Romero becomes clear; I. e., to require that, before revocation of probation for...
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