HALE HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed.
MAY, C.J., and POLEN, J., concur.
WARNER, J., dissents with opinion.
dissenting.
I must respectfully dissent. The court found that appellant violated probation by failing to pay restitution, but it failed to make the required findings that he had the ability to pay and willfully refused to do so. See Aidone v. State, 763 So.2d 1127, 1129 (Fla. 4th DCA 1999); see also Limbaugh v. State, 16 So.3d 954 (Fla. 5th DCA 2009). The court should have made a determination on the record. I cannot find this error harmless, because in my view the evidence presented does not show appellant had the ability to pay. While the trial court also found that appellant had violated probation by failing to report, in accordance with Aidone I would reverse with directions to the trial court to make the necessary findings regarding the failure to pay restitution. If the court determines that the appellant did not have the ability to pay and willfully refused to do so, then the court should vacate that ground for revocation and reconsider whether to revoke the appellant’s probation on the sole remaining charge of failure to report.
[*1180] WARNER, J.,
dissenting.
I must respectfully dissent. The court found that appellant violated probation by failing to pay restitution, but it failed to make the required findings that he had the ability to pay and willfully refused to do so. See Aidone v. State, 763 So. 2d 1127, 1129 (Fla. 4th DCA 1999); see also Limbaugh v. State, 16 So. 3d 954 (Fla. 5th DCA 2009). The court should have made a determination on the record. I cannot find this error harmless, because in my view the evidence presented does not show appellant had the ability to pay. While the trial court also found that appellant had violated probation by failing to report, in accordance with Aidone I would reverse with directions to the trial court to make the necessary findings regarding the failure to pay restitution. If the court determines that the appellant did not have the ability to pay and willfully refused to do so, then the court should vacate that ground for revocation and reconsider whether to revoke the appellant’s probation on the sole remaining charge of failure to report.
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Cited By
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State v. LaFAVE, 113 So. 3d 31 (Fla. 2d DCA 2012)…ion because a modification or termination of probation does not result in the imposition of a sentence. See State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986); State v. Gray, 721 So. 2d 370, 371 (Fla. 4th DCA 1998); see also State v. Russell, 67 So. 3d 1179 (Fla. 4th DCA 2011) (relying on Gray in dismissing a state appeal of an order modifying probation). In State v. Brooks, 890 So. 2d 503 (Fla. 2d DCA 2005), with facts uniquely similar to those in LaFave’s case, we concluded that the State had a righ…
Authorities Cited
- Aidone v. State, 763 So. 2d 1127 (Fla. 4th DCA 1999)
- Limbaugh v. State, 16 So. 3d 954 (Fla. 5th DCA 2009)