484 So. 2d 629 | Fla. Dist. Ct. App. | 1986
Pedro ROJAS a/k/a Jorge Claro Samon, Appellant,
v.
The STATE of Florida, Appellee.
District Court of Appeal of Florida, Third District.
*630 Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Michele Crawford, Asst. Atty. Gen., for appellee.
Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
PER CURIAM.
The defendant appeals the order revoking his probation and sentencing him to three years incarceration. The defendant's argument that Florida Rule of Criminal Procedure 3.701 d.14. should not have been utilized by the trial court in sentencing him after the revocation is without merit. State v. Jackson, 478 So. 2d 1054 (Fla. 1985). The defendant correctly points out, however, that the trial court erred in failing to make an affirmative finding that he was financially able to pay his monthly probation and restitution payments, see Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978), the failure to make said payments being two of the five bases utilized by the court for revocation of the defendant's probation. Nevertheless, in view of the three remaining bases for revocation, which undisputedly were established, the order of revocation is affirmed but modified by deleting any reference to the defendant's failure to pay the monetary assessments. Boyink v. State, 480 So. 2d 210 (Fla. 1st DCA 1985).
