Cohen v. State

365 So. 2d 1052 | Fla. Dist. Ct. App. | 1978

BERANEK, Judge.

Defendant had previously been adjudicated guilty of delivery of a controlled substance and was placed on probation for a term of three years. Defendant was subsequently charged with violating his probation and after hearing was found to be in violation of his probation. This appeal contests the violation holding. The violation of probation was based on findings that defendant was guilty of delivery of heroin and on the further ground that defendant was in violation of § 945.30 Fla.Stat. for failure to pay the costs of his supervision.

We find no error and affirm the conviction based upon the charge of delivery of heroin. We must, however, reverse the finding in regard to the cost of supervision. There was no evidence or finding regarding the defendant’s ability to make the payment on which he allegedly defaulted. Robbins v. State, 318 So.2d 472 (Fla.4th DCA 1975). Further, this finding was based solely upon hearsay evidence. Sharp v. State, 303 So.2d 56 (4th DCA 1974); White v. State, 301 So.2d 464 (Fla.1st DCA 1974). For both of these reasons, the violation regarding defendant’s failure to pay cost of supervision was improper and is hereby reversed.

The conviction is affirmed based upon the criminal violation of delivery of heroin. The finding regarding cost of supervision is reversed and the cause is remanded to the trial court for resentencing in light of this reversal.

AFFIRMED IN PART AND REVERSED IN PART. REVERSED WITH DIRECTIONS.

DAUKSCH and MOORE, JJ., concur.