Del Valle v. State , No. SC08–2001.

CourtUnited States State Supreme Court of Florida
Citation80 So.3d 999
Docket NumberNo. SC08–2001.
PartiesCarlos DEL VALLE, Petitioner, v. STATE of Florida, Respondent.
Decision Date13 February 2012

80 So.3d 999

Carlos DEL VALLE, Petitioner,
v.
STATE of Florida, Respondent.

No. SC08–2001.

Supreme Court of Florida.

Dec. 15, 2011.Rehearing Denied Feb. 13, 2012.


Held Unconstitutional

West's F.S.A. § 948.06(5)

[80 So.3d 1001]

Carol J. Martinez, Public Defender, and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Thomas H. Duffy and Heidi Milan Caballero, Assistant Attorneys General, Miami, FL, for Respondent.

[80 So.3d 1002]

PER CURIAM.

Carlos Del Valle seeks review of the decision of the Third District Court of Appeal in Del Valle v. State, 994 So.2d 425 (Fla. 3d DCA 2008), on the basis that it expressly and directly conflicts with decisions of the Second, Fourth, and Fifth District Courts of Appeal in Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005), Shepard v. State, 939 So.2d 311 (Fla. 4th DCA 2006), and Osta v. State, 880 So.2d 804 (Fla. 5th DCA 2004). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

These cases present two separate questions of law regarding probation revocation for failure to pay restitution: (1) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer's ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011),1 which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional. Regarding the first issue, the underlying constitutional principle is that an indigent probationer should not be imprisoned based solely on inability to pay a monetary obligation. Based on our fidelity to this principle, we approve the holdings of all the district courts of appeal, except the Third District, that before a trial court may properly revoke probation and incarcerate a probationer for failure to pay, it must inquire into the probationer's ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence.

As to the second issue, an automatic revocation of probation without evidence presented as to ability to pay to support the trial court's finding of willfulness violates due process. Accordingly, the State must present sufficient evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial court's finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State's evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional.

FACTS

Del Valle was charged with possession of cocaine and an unrelated, subsequent charge of third-degree grand theft. Del Valle was declared indigent, appointed a public defender, and ultimately entered a plea in each case, which resulted in his placement on probation for two years. As a condition of probation, Del Valle was responsible for paying $1,809.90 in restitution (at the rate of $80 per month) and an additional $25 per month toward the cost of supervision.

On February 14, 2008, an affidavit of violation of probation was filed, which alleged that Del Valle failed to make the required monthly payments and was $375 in arrears with respect to the cost of supervision

[80 So.3d 1003]

and $1,040.92 in arrears with respect to the payment of restitution. The violation report attached to the affidavit of violation classified Del Valle as unemployed and indicated that he was provided with a job referral and job search log. Further, one section of the probation report read: “Subject stated that he is attending Miami–Dade College for his Associate Degree but has failed to bring in documentation that he is attending the college.”

Following the filing of the affidavit of violation of probation, the State offered to reinstate Del Valle to probation. However, during a July 17, 2008, hearing, the trial court rejected probation alone and required any offer by the State to include boot camp as a condition of probation. The State was not ready to proceed, so the case was continued and Del Valle was released on his own recognizance.

On August 7, 2008, another probation violation hearing was held. At the hearing, the State offered the testimony of two of Del Valle's probation officers. One officer testified that he informed Del Valle of the terms of his probation, including both the restitution payment and the obligation to pay a monthly cost of supervision. The second officer then testified that Del Valle was in arrears for both restitution and cost of supervision. After the testimony of both officers, the defense presented no witnesses, and after a brief recess the court found that “the state has sustained its burden of proof in proving both affidavits of violation of probation.” The court further modified the probation to include “the special condition that he enter into and complete the Miami–Dade County Boot Camp Program, including the after care.” 2 The court then also extended the probation for two years with early termination upon successful completion of the boot camp program. The following colloquy then ensued:

[State Attorney]: Is your Honor going to enter a criminal order of restitution, or is Mr. Del Valle continued to be ordered to pay until he surrenders October 27th his restitution amount?

The Court: Yes, but I might reduce the amount each month. How much can you pay each month, Mr. Del Valle?

[Del Valle]: I try to pay eighty or more a month.

The Court: What is the amount you are sure you can pay?

[Del Valle]: If I get a job within this week, eighty a month. The minimum is eighty.

The Court: We will leave those special conditions in effect.

Del Valle appealed the decision of the trial court to the Third District Court of Appeal. The Third District affirmed the trial court, stating in full:

Affirmed. See Gonzales v. State, 909 So.2d 960, 960 (Fla. 3d DCA 2005) (“If the probationer's defense is inability to pay, ‘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

[80 So.3d 1004]

legally to acquire the resources to do so.’ § 948.06(5), Fla. Stat. (2004)”).

Del Valle v. State, 994 So.2d 425, 425 (Fla. 3d DCA 2008).

In direct conflict, the Second, Fourth, and Fifth District Courts of Appeal have held that the burden of proof is on the State to establish that the probationer has the ability to pay in order to demonstrate the willfulness of the violation. See Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006) (“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.”); Blackwelder v. State, 902 So.2d 905, 907 (Fla. 2d DCA 2005) (“[T]he State is required to present evidence of the probationer's ability to pay to demonstrate the willfulness of the violation.”); Osta v. State, 880 So.2d 804, 807 (Fla. 5th DCA 2004) (“[I]n order to revoke probation for failure to pay restitution the burden is on the State to prove the ‘willfulness' of the violation....”).

In addition, the Third District conflicts with the other district courts of appeal as to whether the trial court must make a finding on the probationer's ability to pay before revoking probation for failure to pay. The Third District has held that although a trial court should make a finding on ability to pay, the failure to do so is harmless when the probationer fails to assert and offer evidence on his or her inability to pay. Guardado v. State, 562 So.2d 696, 696–97 (Fla. 3d DCA 1990). All of the district courts of appeal other than the Third District have held that the trial court must make a finding that the probationer had the ability to pay before probation can be revoked for failure to pay. See Limbaugh v. State, 16 So.3d 954, 955 (Fla. 5th DCA 2009) (“It is well-established that where the violation alleged by the State is a failure to pay costs or restitution, there must be evidence presented, and a finding of the trial court that the probationer had the ability to pay, but willfully did not do so.”); Brown v. State, 6 So.3d 671, 672 (Fla. 2d DCA 2009) (“[B]efore finding that Brown violated condition 2, failure to pay the cost of supervision, the trial court was required to find that Brown had the ability to make the required payments.”); Shepard, 939 So.2d at 314 (“[W]here the violation alleged is a failure to pay costs or restitution, there must be evidence and a finding that the probationer had the ability to pay.”); Martin v. State, 937 So.2d 714, 715 (Fla. 1st DCA 2006) (“Revoking probation for failure to pay costs without a finding that the probationer had the ability to pay requires reversal.”).

ANALYSIS
Preservation and Mootness

The State initially claims that Del Valle did not properly preserve his objections and that the case is moot. These arguments have no merit. “For an issue to be preserved for appeal ... it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.” Archer v. State, 613 So.2d 446, 447 (Fla.1993) (internal quotation marks omitted). However, harmful due process violations are fundamental...

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55 practice notes
  • Winbush v. State, No. RE-2016-995
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 29 Noviembre 2018
    ...not found in Oklahoma, that provide a violation must be inexcusable or willful before probation can be revoked. See Del Valle v. Florida , 80 So.3d 999, 1011 (Fla. 2011) (Florida law requires a specific finding of willfulness in a revocation proceeding).1 I note that Appellant committed num......
  • Noel v. State, No. 4D10–1765.
    • United States
    • Court of Appeal of Florida (US)
    • 3 Enero 2014
    ...resources or ability to pay does not have to be established when the trial court assesses and imposes restitution.” Del Valle v. State, 80 So.3d 999, 1006 (Fla.2011). Unless a court “finds clear and compelling reasons” not to order restitution, a court must order a defendant to make restitu......
  • Winbush v. State, Case Number: RE-2016-995
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Noviembre 2018
    ...not found in Oklahoma, that provide a violation must be inexcusable or willful before probation can be revoked. See Del Valle v. Florida, 80 So.3d 999, 1011 (Fla. 2011) (Florida law requires a specific finding of willfulness in a revocation proceeding). 5. I note that Appellant committed nu......
  • Toole v. State, No. 4D17-2115
    • United States
    • Florida District Court of Appeals
    • 20 Febrero 2019
    ...that the defendant's testimony concerning the amount of money she misappropriated "lacked credibility").134 See Del Valle v. State, 80 So.3d 999, 1020 (Fla. 2011) (Lewis, J., dissenting) ("A defendant has the ability to defeat the imposition of a restitution order, or the amount, if he or s......
  • Request a trial to view additional results
52 cases
  • Winbush v. State, No. RE-2016-995
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 29 Noviembre 2018
    ...not found in Oklahoma, that provide a violation must be inexcusable or willful before probation can be revoked. See Del Valle v. Florida , 80 So.3d 999, 1011 (Fla. 2011) (Florida law requires a specific finding of willfulness in a revocation proceeding).1 I note that Appellant committed num......
  • Noel v. State, No. 4D10–1765.
    • United States
    • Court of Appeal of Florida (US)
    • 3 Enero 2014
    ...resources or ability to pay does not have to be established when the trial court assesses and imposes restitution.” Del Valle v. State, 80 So.3d 999, 1006 (Fla.2011). Unless a court “finds clear and compelling reasons” not to order restitution, a court must order a defendant to make restitu......
  • Winbush v. State, Case Number: RE-2016-995
    • United States
    • Colorado Court of Appeals of Colorado
    • 29 Noviembre 2018
    ...not found in Oklahoma, that provide a violation must be inexcusable or willful before probation can be revoked. See Del Valle v. Florida, 80 So.3d 999, 1011 (Fla. 2011) (Florida law requires a specific finding of willfulness in a revocation proceeding). 5. I note that Appellant committed nu......
  • Toole v. State, No. 4D17-2115
    • United States
    • Florida District Court of Appeals
    • 20 Febrero 2019
    ...that the defendant's testimony concerning the amount of money she misappropriated "lacked credibility").134 See Del Valle v. State, 80 So.3d 999, 1020 (Fla. 2011) (Lewis, J., dissenting) ("A defendant has the ability to defeat the imposition of a restitution order, or the amount, if he or s......
  • Request a trial to view additional results

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