Opinion
No. 1D20-2969
11-10-2021
Morgan SMITH, II, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Smith appeals a final order revoking his probation and sentencing him to prison. We review a trial court's decision to revoke probation for abuse of discretion. Lawson v. State, 969 So. 2d 222 (Fla. 2007). "On review of an order of revocation of probation, the appellate court first examines whether competent substantial evidence supports the trial court's finding of a willful and substantial violation." Marchan v. State , 192 So. 3d 658, 660 (Fla. 2d DCA 2016).
There was competent, substantial evidence supporting the trial court's findings. Smith absconded from the state against the terms of his probation and against his probation officer's express direction. Smith made no efforts to comply with the terms requiring him to find employment, enroll in an educational program, and enroll in a batterer's intervention program. The trial court did not abuse its discretion in revoking Smith's probation on these conditions.
However, the trial court failed to make a determination regarding Smith's ability to pay restitution and drug-testing fees, before violating his probation on those grounds. "[B]efore a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so." Stephens v. State , 630 So. 2d 1090, 1091 (Fla. 1994). "Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence." Del Valle v. State , 80 So. 3d 999, 1002 (Fla. 2011). "Harmful due process errors are fundamental errors, which need not be preserved for appeal." Id. at 1004. Failure to make the requisite inquiry into Smith's ability to pay is a reversible error. The findings that Smith willfully violated these monetary conditions must be stricken from the probation order. Marzendorfer v. State , 16 So. 3d 957, 958 (Fla. 1st DCA 2009).
The record is clear that Smith's revocation was based primarily on his absconsion, which was his second time absconding from probation. The record further reflects that his probation would have been revoked regardless of the monetary conditions and the same sentence would have been imposed. Cf. Kimmons v. State , 267 So. 3d 1082, 1084 (Fla. 1st DCA 2019) (holding that remand for resentencing was required where certain grounds for violation of probation were stricken on appeal and it was "not clear from the record whether the court would have imposed the same five-year sentence"). Therefore, we affirm the trial court's judgment but remand for correction of the revocation order.
AFFIRMED and REMANDED .
Bilbrey, Nordby, and Long, JJ., concur.