Revocation of Probation or Community Control—Failure to Pay Court-Ordered Costs or Restitution

 Hon. William H. Burgess, III, B.C.S.

Generally

Trial courts have the power to provide, as a condition of probation or community control, that the defendant pay reasonable sums for court costs¹ and other costs to the state (e.g., attorney’s fees for the services of a public defender),² costs of supervision,³ and restitution⁴ under the broad grant of authority contained in section 948.03, Fla. Stat.  The decision to place a defendant on supervision reflects a determination by the sentencing court that the State’s penological interests do not require imprisonment.⁵  In any event, a probationer’s or community controllee’s failure to make reasonable efforts to repay his or her debt to society may indicate that the original determination needs reevaluation, and imprisonment may now be required to satisfy the State’s interests,⁶ and so supervision can be revoked for failure to comply with such a condition.

This power is qualified by the Equal Protection Clause of the Fourteenth Amendment, which requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.  The State therefor cannot imprison a defendant for nonvoluntary failure to pay a fine, court costs, or restitution without violating the equal protection clause.⁷  Likewise, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.⁸  Sentencing a defendant to imprisonment solely because he or she could not pay a fine, court costs, or restitution, without considering the reasons for the inability to pay or the propriety of reducing the amount to be paid, extending the time for payments, or making alternative orders, is automatically converting monetary such obligations into imprisonment and is constitutionally impermissible.⁹  The requirement that a defendant may be found in willful violation of a supervisory condition to make money payments only if he or she is or could reasonably be financially in a position to do so is one of constitutional dimensions and cannot be waived by the defendant.¹⁰

If the probationer or community controllee has willfully refused to pay the fine, costs, or restitution when he or she has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection or punish noncompliance.  Similarly, a probationer’s or community controllee’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he or she owes to society for his or her crime.  In such a situation, the State is likewise justified in revoking probation or community control and using imprisonment as an appropriate penalty for the offense.  If, however, the probationer or community controllee has made all reasonable efforts to pay the fine or restitution, and yet cannot do it through no fault of his or her own, it is fundamentally unfair to revoke supervision automatically without considering whether adequate alternative methods of punishing the defendant are available.¹¹

State’s Burden

The State has a fundamental interest in appropriately punishing persons, whether rich or poor, who violate the criminal laws, a legitimate interest in payment, and a reasonable expectation that the defendant will make payment of his or her debts a priority.

On a violation of probation or community control for nonpayment, the state has the initial burden of showing (1) nonpayment and (2) willfulness, by a preponderance of the evidence.¹²  It is not sufficient for the State to merely provide evidence of the amount the defendant is in arrears.¹³  That is, in addition to establishing nonpayment, the State must present sufficient evidence of willfulness, including that the probationer or community controlee has, or has had, the ability to pay all or some of the amount due, in order to support the trial court’s finding that the violation was willful.¹⁴

The term “willful” as used in the context of supervision revocation proceedings does not equate with the word “intentional” as that word is often used in other criminal contexts, but rather equates with the failure to make sufficient bona fide efforts to meet the conditions of supervision.¹⁵  Willfulness arises from a refusal to pay despite an ability to do so.¹⁶  Willfulness also arises from a failure to make “all reasonable efforts” or “sufficient bona fide efforts legally to acquire the resources to pay.”¹⁷  Examples of failure to make sufficient good faith efforts to pay can be found where (1) the defendant has received some income, including benefits or loans but either did not pay or underpaid his or her obligation for a period of time while under supervision; (2) the defendant is able to do at least some work but did not make sufficient efforts to seek additional employment or otherwise supplement his or her income, or to borrow money to pay his or her debt; (3) the defendant did not notify his or her probation officer or community control officer of any difficulty in meeting the conditions of his or her supervision or otherwise attempt to have appropriate adjustments made in his or her payment schedule.¹⁸  Willfulness does not exist if a probationer or community controlee makes all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own.¹⁹

Defense Burden

Once the State has shown nonpayment and willfulness, the burden shifts to the defendant to prove by a preponderance of the evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite bona fide efforts legally to acquire the resources to do so.  However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence has been held by the Florida Supreme Court to be unconstitutional.²⁰A showing that the defendant acted in good faith and made reasonable efforts to pay his or her debt is a prerequisite to requiring the trial court to consider alternative methods of punishment before revoking the defendant’s supervision.²¹  Where a payment plan is in place, it is not a defense that the defendant made no payment because he or she could not pay the total amount due in a payment.²²  If the defendant does not offer any evidence of inability to pay according to the terms of the judgment and sentence, the State’s evidence of failure to pay is sufficient within itself to justify a finding by the court that the defendant’s failure was without lawful excuse.²³

Responsibilities of the Court

In revocation proceedings for failure to pay a court-ordered financial obligation, a sentencing court must inquire into the reasons for the failure to pay.²⁴  The court’s inquiry is as to whether the probationer or community controlee had the resources to pay and chose not to do so, or failed to make sufficient bona fide efforts to legally acquire the resources to pay his or her debt:  If the court finds that the probationer or community controlee chose not to pay or failed to make bona fide efforts to acquire the resources to pay, supervision may be revoked; otherwise, supervision may not be revoked for nonpayment.²⁵  The court does not have to make specific factual findings, but needs only make an inquiry into the reasons for failure to pay.²⁶

If the probationer or community controllee willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke supervision and sentence the defendant to imprisonment within the authorized range of its sentencing authority.  If the probationer or community controllee could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.  Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer or community controllee who has made sufficient bona fide efforts to pay.  To do otherwise would deprive the probationer or community controllee of his or her conditional freedom simply because, through no fault of his or her own, he or she cannot pay the fine or restitution.  Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.²⁹

Probation or community control can be revoked for failure to make restitution payments where the evidence shows that during the probationary or community control period the defendant possessed adequate money to pay the sum ordered as restitution and did not pay as ordered; whether or not the defendant’s use of his or her money for matters other than payment of restitution is to be considered justified or excusable is up to the discretion of the trial judge.³⁰  A defendant’s probation or community control can be revoked for failure to pay restitution where the court determines that the defendant did not have the ability to pay the full amount ordered but could have paid more than he or she did toward his or her restitution obligation.³¹  The burden is on the defendant who has the resources to make payments, and neither a court nor the Department of Corrections is required to blueprint the means by which a defendant can legally acquire funds to pay a financial obligation, and a defendant’s violation of the obligation to pay may not be deemed non-willful on the basis of the defendant’s claimed confusion regarding how to fulfill this obligation.³²

Upon a finding of willful and substantial violation, the trial court then has broad discretion to make the ultimate decision of whether to revoke probation.  If the trial court revokes probation, the court “shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudicated guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.”³³

A defendant’s poverty in no way immunizes him or her from punishment.  Therefore, when determining initially whether the State’s penological interests require imposition of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his or her employment history and financial resources.  After having taken into consideration the range of factors underlying the exercise of his or her sentencing function, nothin^{g precludes a judge from imposing on an indigent defendant, as on any defendant, the maximum penalty prescribed by law.34}

Involvement of Third Parties

It is not entirely uncommon for an adult defendant otherwise unable to pay restitution himself or herself to negotiate a probationary or community control sentence in which it is implied, if not expressed, that a third party (e.g., the defendant’s mother) will pay the restitution owed by the defendant, and that court is free to impose any lawful sentence upon revocation for the failure of that third party to pay the restitution.  The net effect of such negotiated pleas upon revocation can be that, as opposed to the need for restitution being the basis of a downward departure, nonpayment of restitution by a party not otherwise legally liable to pay restitution can be used as a basis for an increase in the sentence absent any suggestion of willful nonpayment by the third party.  At least one court, in dicta, has condemned such plea agreements as being “morally repugnant” in that they “permit longer prison terms for poor people whose relatives have failed to raise the money needed to buy their freedom.”³⁵  The fundamental problem with such an arrangement is that it turns the concept of the payment of restitution (or other costs) as mitigation on its head and allows for greater punishment for failure to pay, regardless of the defendant’s ability to pay.  As such, it is constitutionally impermissible for a trial court to revoke probation or community control for nonpayment of restitution in such circumstances, making such conditions of supervision practically unenforceable.³⁶

August 24, 2021

NOTES

¹See Pope v. State, 368 So. 2d 676 (Fla. 1st DCA 1979) (assessment of court costs as a condition of supervision is proper).

²See § 948.03(1)(j), Fla. Stat.

³§ 948.09, Fla. Stat.

⁴§ 775.089, Fla. Stat.

⁵Bearden v. Georgia, 461 U.S. 660, 669-670, 103 S. Ct. 2064, 2071-2072, 76 L. Ed. 2d 221 (1983).

⁶Bearden v. Georgia, 461 U.S. 660, 669-670, 103 S. Ct. 2064, 2071-2072, 76 L. Ed. 2d 221 (1983).

⁷Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970).

⁸Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1071).

⁹Bearden v. Georgia, 461 U.S. 660, 674, 103 S. Ct. 2064, 2074, 76 L. Ed. 2d 221 (1983).

¹⁰See Stephens v. State, 630 So. 2d 1090, 1091 (Fla. 1994) (defendant cannot agree to the imposition of automatic imprisonment for failure to pay restitution).  See also Cain v. City of New Orleans, 2016 WL 2962912 (E.D.La. 2016).

¹¹Bearden v. Georgia, 461 U.S. 660, 668-670, 103 S. Ct. 2064, 2070-2072, 76 L. Ed. 2d 221 (1983).

¹²§ 948.06(5), Fla. Stat.

¹³Reed v. State, 865 So. 2d 644 (Fla. 2d DCA 2004); Glasier v. State, 849 So. 2d 444, 445 (Fla. 2d DCA 2003); Robinson v. State, 773 So. 2d 566, 567 (Fla. 2d DCA 2000).

¹⁴Del Valle v. State, 80 So. 3d 999 (Fla. 2011).

¹⁵See State v. Archuleta, 812 P. 2d 80, 84 (Ct. App. Utah 1991).

¹⁶See Thompson v. State, 250 So. 3d 132, 135 (Fla. 1st DCA 2018).

¹⁷See Thompson v. State, 250 So. 3d 132, 135 (Fla. 1st DCA 2018).

¹⁸See State v. Green, 840 N.W. 2d 727 (Ct. App. Iowa 2013); Ross v. State, 122 So. 3d 136 (Ct. App. Miss. 2013); State v. Monaghan, 2008 WL 2875715 (Ct. App. Ariz. 2008); People v. Romero, 2007 WL 625247 (Ct. App. 4th Dist. Cal. 2007); Ramsdell v. State, 2006 Wy. 159, 149 P. 3d 459 (Wyo. 2006); People v. Hunter, 2005 WL 1111671 (Ct. App. 4th Dist. Cal. 2005); People v. Amorosi, 96 N.Y. 2d 180, 750 N.E. 2d 41, N.Y.S. 2d 339 (Ct. App. New York 2001); State v. Kaine, 1999 WL 1044508 (Ct. App. Ohio 1999); People v. Lawson, 69 Cal. App. 4th 29, 81 Cal. Rptr. 2d 283 (Ct. App. 1st Dist. Cal. 1999); Dickson v. State, 903 P. 2d 1019 (Wyo. 1995); State v. Stapley, 167 Ariz. 462, 808 P. 2d 347 (Ct. App. Ariz. 1991); State v. Davis, 1989 WL 123291 (Ct. App. Ohio 1989); People v. Moaton, 182 Ill. App. 3d 161, 537 N.E. 2d 989 (App. Ct. Ill. 1989) (revocation proper where there was no evidence defendant attempted to become employed, borrow money, or inform probation office of his inability to pay); State v. Hall, 114 Idaho 887, 761 P. 2d 1239 (Ct. App. Idaho 1988); Schmeets v. Turner, 706 S.W. 2d 504 (Missouri Ct. App. 1986) (evidence showed petitioner could have had more employment and made greater restitution); State v. Dumas, 1986 WL 4392 (Ohio 8th Dist. 1986); State v. Woods, 7 Ohio App. 3d 81, 454 N.E. 2d 554 (Ct. App. Ohio 1982).

¹⁹See Del Valle v. State, 80 So. 3d 999, 1005-1006 (Fla. 2011).

²⁰Del Valle v. State, 80 So. 3d 999 (Fla. 2011).

²¹See State v. Dumas, 1986 WL 4392 (Ohio 8th Dist. 1986).

²²See State v. Stapley, 167 Ariz. 462, 808 P. 2d 347 (Ct. App. Ariz. 1991).

²³See State v. Williamson, 61 N.C. App. 531, 534, 301 S.E. 2d 423, 426 (Ct. App. N.C. 1983).

²⁴§ 948.06(5), Fla. Stat.; see also Bearden v. Georgia, 461 U.S. 660, 672-673, 103 S. Ct. 2064, 2073, 76 L. Ed. 2d 221 (1983).

²⁵Knight v. State, 801 So. 2d 160 (Fla. 2d DCA 2001) (costs of supervision); Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000); Stephens v. State, 630 So. 2d 1090 (Fla. 1994) (restitution); Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975) (costs of supervision and restitution).  See also State v. Archuleta, 812 P. 2d 80, 84 (Ct. App. Utah 1991).

²⁶See, e.g., State v. Monaghan, 2008 WL 2875715 (Ct. App. Ariz. 2008)

²⁷§ 948.032, Fla. Stat.

²⁸See Cherry v. State, 718 So. 2d 294 (Fla. 2d DCA 1998) (State failed to present any direct evidence that defendant had ability to work or pay restitution from the beginning of probationary period up to time of revocation hearing); Bianco v. State, 638 So. 2d 1005 (Fla. 4th DCA 1994) (State presented no evidence at revocation hearing of defendant’s ability to work).

²⁹§ 948.06(5), Fla. Stat.; see also Bearden v. Georgia, 461 U.S. 660, 672-673, 103 S. Ct. 2064, 2073, 76 L. Ed. 2d 221 (1983).

³⁰Harris v. State, 453 So. 2d 228 (Fla. 5th DCA 1984) (“When justice requires that a poor person make restitution of ill-gotten gains, the sentencing judge has a tough job. He needs, and should have, authority and discretion as broad as his responsibility.”).

³¹Taylor v. State, 949 So. 2d 345 (Fla. 4th DCA 2007) (defendant’s $200 monthly payment for a cellular telephone was excessive and unnecessary and a willful violation in itself); see also Osta v. State, 880 So. 2d 804 (Fla. 5th DCA 2004); Spruill v. State, 643 So. 2d 1191 (Fla. 5th DCA 1994).

³²Edwards v. State, 892 So. 2d 1192 (Fla. 5th DCA 2005).

³³§ 948.06(2)(e), Fla. Stat.

³⁴Bearden v. Georgia, 461 U.S. 660, 669-670, 103 S. Ct. 2064, 2071, 76 L. Ed. 2d 221 (1983).

³⁵Smith v. State, 933 So. 2d 723 (Fla. 2d DCA 2006).

³⁶See Noel v. State, 191 So. 3d 370, 379 (Fla. 2016) (a sentence providing for a reduction of prison time upon the payment of restitution is no different than a trial court imposing a lengthier sentence if the defendant fails to make a restitution payment).