Thompson v. State, No. 1D17–2751

CourtCourt of Appeal of Florida (US)
Writing for the CourtPer Curiam.
Citation250 So.3d 132
Parties Erin Vontez THOMPSON, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 1D17–2751
Decision Date17 May 2018

250 So.3d 132

Erin Vontez THOMPSON, Appellant,
v.
STATE of Florida, Appellee.

No. 1D17–2751

District Court of Appeal of Florida, First District.

May 17, 2018
Rehearing Denied August 21, 2018


Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

The trial court revoked Appellant's probation because she paid nothing toward

250 So.3d 134

probation costs, court costs, or drug testing for almost two years. Because the record reflects competent, substantial evidence to support the trial court's ruling, and we find no abuse of discretion, we affirm.

Facts

Appellant pleaded guilty to second-degree felony neglect of the younger of her two children, then ages 2 and 5, whom a neighbor found wandering alone outside their apartment while Appellant was gone for half a day in January of 2015. Through counsel, she stipulated to a factual basis for her guilty plea. This felony carried a maximum sentence of up to fifteen years in prison. § 827.03(1)(e), Fla. Stat. (2015) (defining child neglect); § 775.082(3)(d) (establishing permissible sentence).

Based on Appellant's plea of guilty to felony child neglect, the trial court withheld adjudication and sentenced Appellant to two years of probation. She was required to pay $917 in specified court costs/fines and $41.60 a month in costs of supervision, to "work diligently at a lawful occupation ... and support any dependents to the best of your ability," comply with her parenting case plan with the Department of Children and Families, obtain a mental health evaluation, and submit to and pay for random drug testing. In her application for indigent status, Appellant indicated that she had no debts or liabilities.

In April 2017, near the end of her two-year probation period, Appellant came before the same trial judge on an affidavit of violation of probation alleging Appellant's complete failure to pay anything toward her $917 in court costs, $960 in costs of supervision, and $30 for drug testing. The Department of Corrections apparently waived the $960 costs of supervision—which the trial court criticized (in no uncertain terms). That left $947 in court costs and drug testing costs toward which Appellant had paid nothing in two years—"not a nickel," as the trial court described it and defense counsel agreed.

The probation officer recommended incarceration, noting among other things Appellant's prior record of failing to pay costs of probation. Appellant had a felony record of grand theft committed in 2011, a third-degree felony. For that prior felony, Appellant was placed on probation, which she violated by failing to make required payments and failing to complete community service hours. For that violation of probation, she was sentenced to 100 days in jail, and did not appeal.

By the time of the hearing, Appellant had a third child, then four months old. She testified that she received some child support from the children's fathers, one of whom was incarcerated; and had "child support orders out on them" for unpaid support. She received food stamps, and paid no rent or utilities because her housing was government subsidized.

Under direct examination by the state, Appellant admitted that she had not paid anything toward her costs. Appellant's counsel brought up the question of employment on cross-examination. Appellant denied having had any jobs until very recently, a week or two before the hearing. On redirect the state followed up on the employment questions, and then Appellant admitted that she had an under-the-table job cleaning the professional football stadium in Jacksonville after home football games. She quit because it was "nasty" and "a lot" of work, and therefore "it wasn't working out." She did not use any of that money to pay anything toward her probation obligations. She testified that she had been looking for work, but did not work while dealing with her dependency case during the first year of probation (presumably as a result of the felony child neglect charge), and was sick for several

250 So.3d 135

months of her pregnancy during the second year of probation. She presented no medical argument or evidence that she could not work at all during her pregnancy or at any other time during her probation.

Appellant's probation officer testified that Appellant was required to submit monthly job-search logs. Over the two years of her probation, however, Appellant returned only two logs. Both were blank. It was not until shortly after a Notice to Appear was issued on Appellant's violation of probation that she got a job. She was making $8.50 per hour, and had just received her first paycheck the day before the violation of probation hearing. She did not pay or offer to pay anything toward her probation obligations out of that paycheck.

After Appellant and her probation officer testified, defense counsel rested and offered to present argument. The trial court stated that argument was not necessary. He found that Appellant had willfully and substantially violated her probation, orally announcing his ruling of a willful and substantial violation twice, as follows (emphasis added):

I'm going to find that Ms. Thompson is in substantial and willful violation of her probation for failing to even attempt to get a job. And based on her testimony that she actually did have an under-the-table job, could have paid something, just something, a dollar, $10, something. She paid absolutely nothing. And based on her testimony that she just decided to sit there and do nothing while she was working on her DCF plan, again, I'm going to find that she's in substantial and willful violation of probation.

The trial court revoked Appellant's probation and adjudicated her guilty of felony child neglect pursuant to her earlier guilty plea. Despite the statutory maximum sentence of up to fifteen years in prison for felony child neglect, the trial court sentenced Appellant to only six months in county jail with credit for the three days she was in jail after her arrest before bonding out.

Appellant does not dispute her complete failure to pay or that the trial court found she had the ability to pay and willfully refused to do so. She argues that the revocation for failure to pay monetary obligations was improper because there was evidence that her failure to pay was not willful or substantial; and there was other evidence besides what the trial court relied on, in that she complied with other terms of her probation. We find her argument meritless.

Standards for Willfulness and Revocation

On a violation of probation for nonpayment, the state has the initial burden of showing nonpayment and willfulness, by a preponderance of the evidence. § 948.06(5), Fla. Stat. (2015) ; Brown v. State , 221 So.3d 731, 733 (Fla. 1st DCA 2017). Willfulness arises from a refusal to pay despite an ability to do so. See Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (citing Del Valle v. State , 80 So.3d 999, 1012 (Fla. 2011) ). Willfulness also arises from a failure to make "all reasonable efforts" or "sufficient bona fide efforts legally to acquire the resources to pay." See Bearden v. Georgia , 461 U.S. 660, 672–73, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ; Del Valle , 80 So.3d at 1005–06 (citing standard set forth in § 948.06(5), Fla. Stat.); see also Haywood v. State , 987 So.2d 1285, 1287 (Fla. 1st DCA 2008).

Once the state has shown nonpayment and willfulness, the burden shifts to the defendant to prove by a preponderance of the evidence "that he or she does not have the present resources available to pay restitution or the cost of supervision despite

250 So.3d 136

sufficient bona fide efforts legally to acquire the resources to do so ." § 948.06(5), Fla. Stat. (emphasis added); Del Valle , 80 So.3d at 1002, 1015 (approving shifting of burden to defendant and preponderance standard). The trial court must inquire into the reasons for the defendant's inability to pay. Bearden , 461 U.S. at 672–73, 103 S.Ct. 2064 ; Del Valle , 80 So.3d at 1002. Willfulness does not exist if a probationer makes "all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own." Del Valle , 80 So.3d at 1005–06 (quoting Bearden , 461 U.S. at 668–69, 103 S.Ct. 2064 ).

If the defendant fails to satisfy the burden of proof, incarceration is "perfectly justified." Bearden , 461 U.S. at 668, 103 S.Ct. 2064. Upon finding a willful and substantial violation, the trial court then has broad discretion to make the ultimate decision of whether to revoke probation. Brown , 221 So.3d at 733 (citing Lawson v. State , 969 So.2d 222, 229 (Fla. 2007) ). If the trial court revokes probation, the court "shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control." § 948.06(2)(e), Fla. Stat.

This Court reviews the trial court's findings for...

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1 practice notes
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