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

Sentence Mitigation: Extraordinary Restitution

Hon. William H. Burgess, III, B.C.S.

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).²

Sentence Mitigation: Any Degree of Restitution

Hon. William H. Burgess, III, B.C.S.

Alongside section 921.0026(2)(e), Fla. Stat., is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,¹ provides that

In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.²

While section 921.0026(2)(e) focuses on the need for restitution in all cases sentenced under the Criminal Punishment Code, section 921.185 is focused on the actual payment of restitution in essentially all felony or misdemeanor property crimes where there is no injury or opportunity to injure anyone. Each statute thus serves a different purpose and may be applied simultaneously where circumstances justify the application of both,

Downward Departure Sentencing Where the Need for Payment of Restitution to the Victim Outweighs the Need for a Prison Sentence

Hon. William H. Burgess, III, C.B.E.

Consistent with the Fourteenth Amendment of the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution. The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.¹

In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution and the defendant's ability to pay. Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.² The amount of restitution due must be substantial and not be minor.³ The victim must have a “pressing need” to recover the restitution amount specified.⁴