Douglas v. State

Jun 1, 1983

No. AG-53

Versions:433 So. 2d 12

1983 Fla. App. LEXIS 19535

Lead Opinion

JOANOS, Judge.

Douglas appeals the trial court’s revocation of his probation. After being plaсed on probation for forgery, Douglas was charged with violating five conditions of his probation. With assistance of counsel, he pled guilty to three alleged violations, those of not filing monthly reports, not paying monthly costs of supervision, and of changing his residence without priоr approval. After a hearing he was found guilty of the three admitted violations as well as the alleged violation that he had violated the law while on probation in that he committed robbery. His probation was revoked and he was sentenced to a term of two years with 40 days credit for time already served.

Appellant’s appeal does not challenge the revocation of probation and the sentence. His brief states awareness оf the cases which hold that despite one erroneous ground for revocation of probation that there is no reversible error where “... substantial grounds remain to support the rеvocation and where it is clear from the record that the trial court would have revоked the probation on the remaining grounds.” The only relief asked on appeal is to strikе from the trial court’s findings that appellant violated his probation by failing to pay the costs of supervision. We affirm.

Appellant’s argument is that a trial court may not revoke probation for failure to pay any amounts required to be paid as a condition of that probation without a specific finding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the probationer had the financial ability to make the payments. For this proposition he cites a number of district court of appeal cases including one from this court, Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). We are aware that the stated principle of law is set forth in the cases cited. However, the case before us involves a situation where the defendant has pled guilty to the allegation of failure to pay. We can find nothing in the cases cited to suggest that the requirement that the state must prove ability to pay applies when a defendant pleads guilty to a violation of probation. An informed guilty plea in a probation violation case relieves the state of its proof requirements and wаives the defense of inability to pay as well as other defenses. Upon a plea of guilty to an allegation of probation violation, there is no requirement that there be a determination as to the factual basis of the plea. Suggs v. State, 304 So.2d 463, 464 (Fla. 2d DCA 1974). While minimal due process standards must be met in рrobation revocation proceedings, it is not necessary to meet the strict requirements of a criminal trial. Baker v. State, 319 So.2d 628, 629 (Fla. 1st DCA 1975).

AFFIRMED.

THOMPSON, J., concurs. MILLS, J., concurs specially with an opinion.

Concurrence Opinion

MILLS, Judge,

concurring specially:

Although I concur in the majority’s decision that Douglas’ probation should be revoked, I would strike that portion of the trial court’s order finding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that Douglas violated the terms of his probation by failing to pay the cost of his supervision as required by Section 945.30, Florida Statutes (1981).

There was no evidence at Douglas’ probation revocation hearing that he was able to pay the cost of his supervision, nor was there any specific finding made as to that fact. Douglas was adjudicated insolvent, however, and was represented in the revоcation proceeding by the public defender. At one point during the hearing, his attorney made the following statement:

Your Honor, continuing on, as regards violation number two, which is violating condition two, that he did not pay ten dollars monthly report — ten dollars cost of supervision — hе enters a plea of guilty to that charge.

Later, when asked if he had secured the pеrmission of his probation officer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to quit paying the cost of supervision, Douglas answered, “I did not.”

It is well settled that before revoking probation for nonpayment of the cost of supеrvision, the trial court must find that the defendant has the financial ability to pay. Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978); Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). The majority, however, holds that Douglas waived his right to an inquiry into his financial status when he “pled guilty” to the charge of fаilure to pay.

In my view, Douglas’ and his attorney’s statements to the trial court were more in the nature of an admission or confession than a true “guilty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plea.” There is no doubt in my mind that Douglas had nо Vtea that by making these statements, he was admitting that he had the ability to pay.

In any event, I rejеct the distinction drawn by the majority between this case and cases such as Jones, because I consider that it makes very little difference whether proof of nonpayment comes from the defendant or from some independent source. The trial court should not be relieved of its duty to inquire into the financial status of the defendant in cases ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such as this, especially since that burden would be so slight.