LORETTA DOWNING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Loretta Downing, a 65-year-old on fixed income, was ordered to pay $14,500 restitution after a fire she negligently started destroyed her neighbor's property. When she could not pay the remaining balance despite good-faith efforts, the trial court found her in violation of probation by refusing to waive her homestead exemption. The appellate court reversed, holding that the Florida Constitution's homestead exemption protects homestead property from forced sale even in criminal restitution cases.
The court held that the Florida Constitution's homestead exemption prohibits courts from forcing the sale or encumbrance of homestead property to satisfy restitution obligations, whether in civil or criminal proceedings. A defendant's ownership of homestead property cannot be considered as an available financial resource to pay restitution.
[1] A defendant's homestead property is exempt from forced sale under process of any court, including for the purpose of satisfying restitution ordered as a condition of prob…
[2] A court cannot order a defendant to execute a note and mortgage on homestead property to secure restitution payments.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There shall be exempt from forced sale under process of any court ... the following property owned by a natural person.”
States the constitutional protection for homestead property that applies regardless of whether the court is civil or criminal.
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Join FLexlaw to unlock all legal intelligenceDowning, a 65-year-old living alone on $443 monthly in social security and pension benefits, was burning trash in her yard when the fire escaped and d…
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HARRIS, Judge.
Loretta Downing, a 65-year-old woman living alone in her mobile home, was burning trash in her back yard when the fire escaped and destroyed her neighbor’s storage shed. Unknown to Downing, the neighbors had recently stored $14,500 worth of property in that shed. This property was also destroyed.
Downing pled guilty to a second degree misdemeanor1 because she “knowingly set fire to a trash pit and allowed said fire to escape, which caused property damage to neighbors [sic] estate.”
Although Downing was living on $443 per month social security benefits and a small pension, the court ordered her to pay $14,500 restitution as a condition of her six months probation. She paid $50 per month toward that restitution from her funds, and neighborhood friends contributed an additional $6,179.61 raised through community activities.
Nearing the end of her probation term, Downing still owed $8,080.39 in restitution. The probation officer, although acknowledging that Downing had been a model probationer and was unable to pay the remaining restitution, filed an affidavit of violation of probation because of the nonpayment.
The trial court held that Downing had the ability to pay the restitution “because she owned her own home.” Her refusal to waive her homestead exemption rights constituted a “wilful refusal to pay restitution.” The judge found her guilty of violation of probation, sentenced her to an additional six months probation, and imposed community service hours.
The court certified the following question:
IN DETERMINING A DEFENDANT’S FINANCIAL RESOURCES IN A VIOLATION OF PROBATION BASED UPON FAILURE TO PAY MONETARY RESTITUTION, CAN THE COURT CONSIDER THE DEFENDANT’S OWNERSHIP INTEREST IN HOMESTEAD PROPERTY AND ORDER A DEFENDANT TO EXECUTE A NOTE AND MORTGAGE IN FAVOR OF THE VICTIMS AND PAYABLE UPON DEATH TO SECURE RESTITUTION?
We answer the question in the negative, reverse the revocation of probation, and order Downing released from further supervision.
Article 10, section 4 of the Florida Constitution provides:
There shall be exempt from forced sale under process of any court ... the following property owned by a natural person. The constitution does not distinguish between the civil court and the criminal court. Nor shall we.
The purpose of the homestead act is to protect the homeplace against financial misfortune. The public policy of this state would prohibit the victim of this fire damage from attaching Downing’s homestead directly through a tort action judgment. It also prohibits the “forced sale” by a county judge as a condition for avoiding the consequence of a violation of probation.
REVERSED and REMANDED.
COBB and GRIFFIN, JJ., concur. . Section 590.12(l)(d), Fla.Stat. (1989).
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Schlosser v. State, 602 So. 2d 628 (Fla. 2d DCA 1992)…the Florida Constitution, which exempts “personal property to the value of one thousand dollars” from forced sale or judgment lien.2 The homestead exemption has been held applicable against orders of restitution in criminal cases. Downing v. State, 593 So. 2d 607 (Fla. 5th DCA 1992). No prior notice to the debtor is required before a writ of garnishment may issue. United Presidential Life Ins. Co. v. King, 361 So. 2d 710 (Fla.1978). Instead, section 222.061, Florida Statutes (1991), sets forth the method by…
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Ergos v. State, 670 So. 2d 1079 (Fla. 2d DCA 1996)…agree, that the sentencing court could not impose such Ken under article X, section 4 of the Florida Constitution. See Istvanditsch v. State, 636 So. 2d 822 (Fla. 4th DCA 1994); McInnis v. State, 624 So. 2d 856 (Fla. 4th DCA 1993); Downing v. State, 593 So. 2d 607 (Fla. 5th DCA 1992); cf. Butterworth v. Caggiano, 605 So. 2d 56 (Fla.1992) (constitutional homestead guarantee intended to preserve homestead against involuntary divestiture by the courts without regard to technicaKties of how divestiture accompKshe…
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Bruno v. Moore, 741 So. 2d 570 (Fla. 1st DCA 1999)…ease, he has been in custody since. If the control release authority determines after remand that, but for premature revocation of control release, Mr. Bruno would by now have been discharged, he should be discharged forthwith. See Downing v. State, 593 So. 2d 607 (Fla. 5th DCA 1992) (reversing order revoking probation and discharging defendant); Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978) (discharging defendant whose probation was erroneously revoked three months before it was to have terminated). S…