The Defendant served a probation sentence after being convicted of Felony Grand Theft, for more than $20,000, but less than $100,000. The Defendant stopped making restitution payments and was currently $15,223 in arrears. The Defendant’s Probation Officer requested a warrant for the Defendant’s arrest after she violated probation by failing to make the restitution payments in accordance with the terms of her probation.
Violation of Probation of Felony Grand Theft
Felony Grand Theft in Florida occurs when an individual intentionally takes property valued at $300 or greater. This is a second-degree felony that is punishable by up to 15 years of prison time or 15 years probation and a $10,000 fine.
A violation of probation occurs when the offender willfully violates any terms that are set forth in their probation. The defendant has agreed upon this rather than being incarcerated.
In a violation of probation case, there is not a jury. Often times, it is easier for the prosecutors to have an easier time proving that a violation of probation did occur. A preponderance of evidence standard will need to be proved in order to find the defendant guilty of violating probation. This means there was a likelihood of at least 51% that the defendant did violate their probation. During this hearing, the judge will consider the type of violation, the circumstances that lead to the violation, the severity of the violation, if there have been previous violations, and other circumstances.
A violation of probation in Florida is not willful if the defendant makes attempts to comply with all the conditions of their probation. Sometimes, there are certain aspects that are out of control of the defendant, such as medical issues or not having the means to pay fines and restitution.
Failure to Make Restitution Payments in Florida
The defendant must prove that they were unable to make the restitution payments as resources were not available to do so. Efforts can be shown that they were trying to make a reasonable effort, such as looking for employment or selling personal assets.
A payment schedule can be set forth to help any defendant meet their needs. This schedule can be set forth by only a judge. A probation officer does not have the right to set the payment schedule, as this is against the law.
Unfortunately, many probation officers will see a payment schedule has not been set. They may feel the need to set their own payment schedule up, which many times the client can not afford.
RESULT: The Defense Attorney proved to the Court that the Client did stop making restitution payments by choice, but rather she was without the funds to do so. The Defense arranged a payment schedule with the Court that met the Client’s needs. The Court DISMISSED the Violation of Probation Warrant and MODIFIED the payment schedule and restitution sentence.