Probation Cases:

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PERSON, A.K.A. PEARSON, v. STATE, 37 Fla. L. Weekly D634a (Fla. 3d DCA, Mar 14, 2012)

Three violations found by trial court were unsupported (unfortunately this guy had five violations but the reasons dismissing three are always helpful).

“While Person was charged with an aggravated battery in violation of condition K4 by failing to live and remain at liberty without violating any law, the trial court found that the offense had not been established even by a preponderance of the evidence, as required to support a probation violation. While the court found that there was probable cause for his arrest on that charge, a mere arrest is obviously insufficient to establish a violation. See Hines v. State, 358 So. 2d 183, 185 (Fla. 1978); Hernandez v. State, 33 So. 3d 143 (Fla. 2d DCA 2010); Sharpston v. State, 895 So. 2d 1225 (Fla. 2d DCA 2005).”

I’m still rereading that paragraph… the court what?

“The claimed violation by Person’s failure to attend a substance abuse evaluation cannot stand because there is no such standard [general] condition of probation, and none was clearly enunciated during the oral pronouncement of additional ones. See Lawson v. State, 969 So. 2d 222, 227 n.3 (Fla. 2007); Cole v. State, 932 So. 2d 1123 (Fla. 4th DCA 2006); Parrish v. State, 898 So. 2d 1074 (Fla. 1st DCA 2005).”

“It was alleged that Person had violated condition L3 of the order of probation in that he failed to file job search logs. Because there was no orally pronounced or written order which required the filing of such documents, he could not have been violated on this ground. See Williamson v. State, 43 So. 3d 843 (Fla. 1st DCA 2010); Bell v. State, 24 So. 3d 712 (Fla. 2d DCA 2009); Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988). The trial judge, however, found that he had violated condition L4 “by failing to being gainfully employed as evidenced by his failure to submit weekly job search logs as instructed by his probation officer.”  This finding is also unsustainable because (a) it represents a deviation from the accusations of the affidavit of violation of probation; see Garcia v. State, 73 So. 3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So. 3d 152 (Fla. 3d DCA 2010); Mitchell v. State, 607 So. 2d 486 (Fla. 3d DCA 1982). Accordingly, violations 2, 3, and 5 are stricken from the order revoking probation.”

BROOKS v. STATE, 37 Fla. L. Weekly D641a (Fla. 5th DCA, Mar 16, 2012)

The State charged Brooks with one count of organized fraud of $50,000 or more in violation of section 817.034(4)(a)(1), Florida Statutes. Thereafter, Brooks entered a plea of guilty. The trial court withheld adjudication and placed Brooks on probation for a period of thirty years. As a special condition of the probation, the trial court ordered Brooks to pay $130,000 in restitution to Beta Max, Inc. c/o Tami Hamilton, to be paid at a minimum rate of $550 per month and a $10,000 payment within six months. Thereafter, the State filed an affidavit of violation of probation, stating in part that Brooks had failed to make restitution payments as directed by the trial court.

As recently as last year, the Florida Supreme Court addressed the problem of violation of probation for failure to pay restitution. Del Valle v. State, 36 Fla. L. Weekly S732 (Fla. Dec. 15, 2011). Section 948.06, Florida Statutes (2009), places the burden on the non-paying probationer to prove inability to pay by clear and convincing evidence. Most of the intermediate appellate courts had concluded, however, that the State is obliged to carry the initial burden of proving willful failure to pay. The Florida Supreme Court said:

“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), 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.”

Del Valle, 36 Fla. L. Weekly at S732. (footnote omitted).

Still trying to catch up.

Happy defending!

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