I.H. was someone who was out on probation but who did not stay out on probation. The state asserted multiple bases for violating I.H.’s probation. While I.H.’s probation was ultimately violated because he admitted in open court that he committed the crime of resisting a police officer without violence, his case still went before the Second District Court of Appeal. The part of that court’s ruling addressing some of the other alleged bases for violating I.H.’s probation offers some potential good news for others on probation.
In I.H.’s case, the state alleged he failed to pay court costs and failed to pay the costs of his drug testing. These were two of the “special conditions” of I.H.’s probation. A court may order a probationer to pay court costs and to pay for his drug testing as special conditions of probation, and violate that probationer’s probation if he doesn’t pay. The key thing is, though, that the trial judge has to explicitly include those conditions in the order of probation. If a condition (like paying court fees or drug testing charges) is not included in a person’s order of probation, the probation cannot violate the terms of his probation by failing to do it.
I.H.’s order of probation did not include the requirement that he pay drug testing charges, either as a special condition or standard condition of probation. The court did include an explicit condition requiring I.H. to submit to random drug and alcohol testing, but that condition said exactly nothing about I.H. having to pay for those tests as a condition of his probation. Given the language in (and not in) the order, I.H. couldn’t be in violation for failing to pay these costs.
You must not only fail to pay, but willfully fail to pay
Another essential element of any violation of probation based upon a probationer’s failure to pay a cost is proof that the probationer’s failure to pay was willful. The law generally opposes throwing people in jail simply for being poor or broke, which is essential what would happen if a court violated a probationer’s probation simply for failing to pay an expense that he lacked the funds to pay.
As part of that process, the law in Florida requires that the trial court make an inquiry into the probationer’s ability to pay. The court must do that and must make explicit findings that the probationer had the ability to pay but nevertheless willfully failed to make the payments. If the judge doesn’t perform that inquiry or doesn’t make both of those findings, that failure can be the key to getting your violation of probation overturned. (Depending on the facts of your case, there may be other grounds, too.)
If the state has begun a probation violation proceeding against you, it is very serious and requires swift and definitive action from you. Begin with contacting the knowledgeable Tampa Bay probation violation attorneys at Blake & Dorsten, P.A. Our attorneys have been helping clients for many years to protect their rights and get the best results possible. Call us today at (727) 286-6141 to schedule your FREE initial consultation.