Sentencing Court Must Establish Probation Payment Schedule According To Defendant S Actual Ability T
A violation of probation must be both willful & substantial in order for the trial court to either modify or revoke your probation for a violation. The word willful is a relatively simple concept, but is very important in probation violation hearings. For the court to find an individual willfully in violation of the terms of his probation, the State of Florida must do more than prove that the defendant didn't comply with the terms, but the State must additionally establish that the individual had the ability to comply.
This type of situation often comes up in probation violations that involve restitution or other payments by the defendant. The State of Florida bears the burden of proving that the individual had the ability to comply with the terms of his probation, but failed to do so. Since the burden of proof in a violation of probation hearing is much lower than in a criminal trial, it is often best for the defense to present some evidence showing the defendant's income and expenses so the court can see that the defendant doesn't have the ability to comply with the terms of probation.
In the matter of Ianieri v State, the Fourth District Court, using an abuse of discretion standard of review, reversed and remanded the case for the sole purpose of creating a payment plan that is consistent with the defendant's ability to pay. Defendant was sentenced to a term of incarceration which was to be followed by a period of probation and an immediate payment of restitution to the victim after being convicted on a guilty plea of two counts: (1) DUI causing or contributing to serious bodily injury; and, (2) DUI causing or contributing to injury to a person or property. The 4th District Court relied on the holding in Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994), that states that where the proof did not show the defendant's ability to pay the restitution immediately, as in this case, the court should set a later date for payment or establish a payment schedule which is based on the defendant's actual ability to pay.
Miami, FL 33131
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