Raines v. State ( 1984 )

445 So. 2d 408 (1984)

Joe W. RAINES, Appellant,
v.
STATE of Florida, Appellee.

No. 83-1208.

District Court of Appeal of Florida, Second District.

February 17, 1984.

Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.

SCHOONOVER, Judge.

The appellant, Joe W. Raines, has appealed from a judgment and sentence entered as a result of an order finding him guilty of violating his probation. We affirm.

The appellant was charged with failing to make certain financial payments in violation of conditions (2), (9), and (10) of his probation and with committing a burglary in violation of condition (5). At the conclusion of the revocation hearing, the court found appellant guilty of violating the aforementioned conditions and revoked his probation. Appellant was adjudicated guilty of the burglary offense for which he was originally placed on probation and sentenced to serve three years in prison.

The evidence at the probation revocation hearing was insufficient to show that appellant had the ability to make the financial payments required by conditions (2), (9), and (10) of his probation.^[1] Therefore, it was improper to find him guilty of violating these conditions, and we, accordingly, strike those portions of the revocation order. Coxon v. State, 365 So. 2d 1067 (Fla.2d DCA 1979).

However, since there was competent evidence to support the finding of the trial court that appellant had violated condition (5) of the order, and the record reflects that the trial court was concerned with this condition and not with the financial conditions hereinabove stricken, we affirm the order revoking appellant's probation and the judgment and sentence entered as a result thereof. See Sillett v. State, 393 So. 2d 53 (Fla.2d DCA 1981).

AFFIRMED.

DANAHY, A.C.J., and LEHAN, J., concur.

NOTES

[1] The financial payments were as follows: condition (2) — $10 per month in supervisory fees; condition (9) — $250 in attorney's fees; and condition (10) — $15 in court costs.