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Trial Court Required to Establish Restitution Payment Schedule According to a Defendant's Ability to Pay  Uploading ....A violation of probation must be both willful and substantial in order for the trial court to either modify or revoke your probation for a violation. The word willful is a relatively simple concept. For the court to find a defendant willfully in violation of the terms of his probation, the State must not only establish that the individual did not comply with the terms, but the State must additionally prove that the individual had the ability to comply.
This type of situation often comes up in probation cases that involve restitution or other payments by the defendant. The State of Florida bears the burden of proving that the individual had the ability to comply with the terms of his probation, but failed to do so. Since the burden of proof in a probation violation hearing is significantly lower than in a criminal trial, it's usually best for the defense to present some evidence showing the defendant's income and expenses so the court is able to see that the defendant does not have the ability to comply with the terms of probation.
In the matter of Ianieri v. State, the 4th District Court of Appeal, using an abuse of discretion standard of review, reversed and remanded the case for the sole purpose of establishing a payment plan that is consistent with the defendant's ability to pay. The defendant was sentenced to a term of incarceration which was to be followed by a period of probation & an immediate payment of restitution to the victim after being convicted upon a guilty plea of two counts: (1) DUI causing or contributing to serious bodily injury; &, (2) driving under the influence causing or contributing to injury to a person or property. The court of appeal relied on the holding in Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994), which provided that where the evidence did not establish the defendant's ability to immediately pay the restitution, as in this case, the trial court should set a later 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 Lawyer Miami FL and Probation Attorney Miami FL please contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard
28th Floor
Miami, FL 33131
(305)429-3285
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