A violation of your probation must be both willful and substantial in order for the trial court to either modify or revoke your probation for a violation. The term willful is a relatively simple concept, but is very important in probation violation hearings. For the court to find a defendant willfully in violation of the terms of his probation, the State of Florida has to not only establish that the defendant did not comply with the terms, but the State of Florida must also prove that the individual had the ability to comply.
This type of situation often arises in probation cases that involve restitution or other payments by the defendant. The State of Florida has the burden of proving that the Defendant 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 substantially lower than in a criminal trial, it is usually best for the defense to present some evidence showing the defendant’s income & expenses so the court can see that the defendant does not have the ability to comply with the terms of probation.
In the appeal of Ianieri v State of Florida, the 4th District Court, utilizing an abuse of discretion standard of review, reversed and remanded the case for the sole purpose of creating a payment plan which 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 2 counts: (1) DUI causing or contributing to serious bodily injury; &, (2) DUI causing or contributing to injury to a person or property. The district court relied on the case of Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994), that states that where the proof didn’t establish defendant’s ability to pay the restitution immediately, as in this case, the trial court should set a future date for payment or create a payment schedule which is based on the defendant’s actual ability to pay.
For further information on Click Here , Dui Attorney Miami FL and Probation Miami FL you can contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard
28th Floor
Miami, FL 33131
(305)429-3285
