No Violation Of Probation For Failure To Pay Without Ability And Refusal

The defendant was placed on probation and as a condition of probation ordered to pay restitution. The defendant was ordered to make monthly restitution payments.  A violation of probation affidavit was filed alleging that the defendant failed to make the required monthly restitution payments and was behind in paying cost of supervision as well.  At the violation of probation hearing one probation officer testified the defendant was informed of the terms of his probation, including both the restitution payment obligation and the obligation to pay a monthly cost of supervision.  A second probation office testified that the defendant was behind on both restitution and cost of supervision.  The defense presented no witnesses. The trial court found the defendant in violation of probation and sentenced the defendant.  The defendant appealed the trial court’s violation of probation finding.


The Florida Supreme Court found that before a probationer can be imprisoned for failure to pay a monetary obligation such as restitution, the trial court must inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence.  Further, in all probation revocation proceedings in which the violation alleged is a failure to pay a monetary obligation as a condition of probation, the State must present sufficient evidence of the probationer’s willfulness, which includes evidence on the ability to pay, to support the trial court’s finding of willfulness.  After evidence of willfulness is introduced by the State, the burden may then be properly shifted to the probationer to assert an inability to pay.  However, it is unconstitutional to require the probationer to prove inability to pay by clear and convincing evidence, a burden higher than the burden required of the State to prove the violation of probation.

See Del Valle v. State, 80 So.3d 999 (Fla. 2012)

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