Skipper v. State , 2016 Fla. App. LEXIS 5408 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL SKIPPER, )
a/k/a MICHAEL DOUGLAS SKIPPER, )
)
Appellant, )
)
v. ) Case No. 2D15-1263
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 8, 2016.
Appeal from the Circuit Court for Polk
County; Michael E. Raiden, Judge.
Howard L. Dimmig, II, Public Defender, and
Judith Ellis, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Chief Judge.
Michael Skipper seeks review of the order finding him in violation of his
probation for one count of third-degree grand theft. Because the State presented no
evidence that Skipper had the ability to pay restitution but willfully failed to do so, the
State failed to prove that Skipper had violated his probation. Therefore, we reverse the
order of revocation and remand with directions.
In March 2011, Skipper pleaded no contest to one count of third-degree
grand theft in exchange for a sentence of thirty months' probation. His probation
included a special condition that he pay restitution in the amount of $8443.27 to Polk
County at the rate of $300 per month. The court also imposed various other costs and
fees.
In March 2012, the court granted Skipper's motion to convert his court
costs, fees, and fines—but not his restitution—to community service hours. By July
2012, Skipper had paid all of his court costs and fines through those hours, and he then
requested that his probation be transferred to Georgia so that he could care for his
young son and disabled wife who were living there near his wife's parents. This request
was granted despite the fact that Skipper was more than $2000 in arrears on his
restitution payments at that point.
In November 2013, shortly before Skipper's probation was to terminate,
the Department of Corrections filed an affidavit of violation of probation alleging that
Skipper had violated his probation by failing to make his restitution payments. For
reasons not apparent from the record, the court did not set a revocation hearing on this
affidavit until March 2015.
At the revocation hearing, the undisputed evidence established that
Skipper was living in rural Georgia with his wife and 14-year-old son. His wife is
completely disabled from a 2008 stroke, which left her paralyzed, wheelchair-bound,
and needing assistance with virtually every activity of daily living. Skipper is his wife's
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full-time caregiver. While Skipper's in-laws live nearby and his father-in-law is able to
help Skipper care for his wife in an emergency, this is not a permanent arrangement
because his father-in-law is the full-time caregiver for his own wife, the wife's mother.
Prior to her stroke, Skipper's wife was the family's primary breadwinner.
Skipper testified that while it would not be possible in central Florida, in this area of rural
Georgia his family is able to live on his wife's disability income. Skipper testified that he
tries to supplement the family income by taking odd jobs, but there aren't many
available jobs in the area and working creates the problem of finding someone to care
for his wife. Skipper did not dispute that he has not made regular payments toward his
restitution obligation. However, he testified that he has paid what he can in light of his
financial situation and his wife's medical condition.1
Importantly, the State did not offer any evidence to contradict Skipper's
testimony. Instead, the State simply argued that it believed that Skipper should be able
to find work. The State proposed that Skipper could get a job, pay someone to care for
his wife, and then remit the remainder of his earnings to cover the restitution obligation.
Alternatively, the State proposed that Skipper could have his father-in-law or his 14-
year-old son care for his wife while Skipper was at work. However, the State offered no
evidence to support its contention that Skipper could find work in rural Georgia and was
simply choosing not to do so. The State also offered no evidence that any job Skipper
might be able to get would pay more than what he would have to pay a substitute
caregiver for his wife. Nevertheless, the trial court found that Skipper had willfully
1
The record shows that Skipper has paid $250.01 toward the restitution
obligation.
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violated his probation by failing to pay restitution. It then extended Skipper's probation
for two years,2 ordered that Skipper seek a job working at least twenty hours per week,
and ordered that Skipper apply for a minimum of five jobs a month that he is qualified to
hold. Skipper appeals this modification of his probation.
"In probation revocation proceedings for failure to pay a monetary
obligation as a condition of probation, the trial court must find that the defendant's failure
to pay was willful—i.e., the defendant has, or has had, the ability to pay the obligation
and purposefully did not do so." Del Valle v. State, 80 So. 3d 999, 1012 (Fla. 2011)
(citing Bearden v. Georgia, 461 U.S. 660, 668-69 (1983)). In making the determination
of willfulness, the trial court must consider the probationer's employment status, earning
ability, financial resources, the willfulness of the failure to pay, and any other special
circumstances that may have a bearing on the probationer's ability to pay. Id. at 1013;
see also § 948.032, Fla. Stat. (2015). Moreover, the burden is on the State to present
sufficient evidence to support a finding that the probationer had the ability to pay the
monetary obligation and was refusing or choosing not to do so. Del Valle, 80 So. 3d at
1013.
Here, the State did not present any evidence to show that Skipper had the
ability to pay the restitution and was refusing or choosing not to do so. It was
2
We note that Skipper has been on community control or probation
continuously since June 20, 2011, for this third-degree felony conviction. Given the
statutory maximum sentence of five years, we question whether the trial court had the
authority to extend Skipper's probation through March 2017. See Francois v. State, 695
So. 2d 695, 697 (Fla. 1997) (noting generally that probation may not be extended to a
point that the time spent on probation exceeds the statutory maximum for the offense).
However, Skipper did not raise this issue in this appeal, and our resolution of this case
renders the issue moot.
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undisputed that Skipper is his disabled wife's full-time caregiver. While the State argued
that Skipper should be able to find work, its suggestion that Skipper have his father-in-
law or his son care for his wife so he could work does not address the other obligations
Skipper's father-in-law has or the inappropriateness of having a 14-year-old boy provide
full-time care to his disabled mother rather than attending school. Moreover, the State
offered no evidence that any job available in this area of rural Georgia and for which
Skipper is qualified would pay enough for him to both pay an outside caregiver for his
wife and make payments toward restitution. In short, the State offered no evidence
whatsoever to meet its burden to prove that Skipper had the ability to pay restitution and
was simply refusing or choosing not to do so.
While we recognize that in many instances it is appropriate for the court to
order a probationer to seek work to obtain the means to pay restitution, in the
circumstances here—where Skipper is the full-time caregiver for his totally disabled wife
and the State offers no evidence that any financially viable alternative caregiving
arrangements can be made—such an order would serve no useful purpose and
therefore cannot stand. Hence, on these unique facts, we hold that it was an abuse of
discretion to find that Skipper had willfully failed to pay restitution in violation of his
probation obligations. Accordingly, we reverse the order finding Skipper in violation and
modifying and extending his probation.
We note that the record shows that Skipper has completed all of the other
terms of his probation. Further, it is apparent that Skipper's wife's condition will
continue indefinitely. Therefore on remand the trial court should terminate Skipper's
probation and issue a criminal order of restitution payable to the victim for the balance
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of the restitution owed. See Huard v. State, 971 So. 2d 890, 891 (Fla. 3d DCA 2007)
(converting the restitution obligation into a criminal order of restitution when the
defendant had no ability to pay).
Reversed and remanded with directions.
SILBERMAN and LUCAS, JJ., Concur.
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