Erin Vontez Thompson v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2751
_____________________________
ERIN VONTEZ THOMPSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
___________________________
On appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.
May 17, 2018
PER CURIAM.
The trial court revoked Appellant’s probation because she
paid nothing toward probation costs, court costs, or drug testing
for almost two years. Because the record reflects competent,
substantial evidence to support the trial court’s ruling, and we
find no abuse of discretion, we affirm.
Facts
Appellant pleaded guilty to second-degree felony neglect of
the younger of her two children, then ages 2 and 5, whom a
neighbor found wandering alone outside their apartment while
Appellant was gone for half a day in January of 2015. Through
counsel, she stipulated to a factual basis for her guilty plea. This
felony carried a maximum sentence of up to fifteen years in
prison. § 827.03(1)(e), Fla. Stat. (2015) (defining child neglect);
§ 775.082(3)(d) (establishing permissible sentence).
Based on Appellant’s plea of guilty to felony child neglect,
the trial court withheld adjudication and sentenced Appellant to
two years of probation. She was required to pay $917 in specified
court costs/fines and $41.60 a month in costs of supervision, to
“work diligently at a lawful occupation . . . and support any
dependents to the best of your ability,” comply with her parenting
case plan with the Department of Children and Families, obtain
a mental health evaluation, and submit to and pay for random
drug testing. In her application for indigent status, Appellant
indicated that she had no debts or liabilities.
In April 2017, near the end of her two-year probation period,
Appellant came before the same trial judge on an affidavit of
violation of probation alleging Appellant’s complete failure to pay
anything toward her $917 in court costs, $960 in costs of
supervision, and $30 for drug testing. The Department of
Corrections apparently waived the $960 costs of supervision—
which the trial court criticized (in no uncertain terms). That left
$947 in court costs and drug testing costs toward which
Appellant had paid nothing in two years—“not a nickel,” as the
trial court described it and defense counsel agreed.
The probation officer recommended incarceration, noting
among other things Appellant’s prior record of failing to pay costs
of probation. Appellant had a felony record of grand theft
committed in 2011, a third-degree felony. For that prior felony,
Appellant was placed on probation, which she violated by failing
to make required payments and failing to complete community
service hours. For that violation of probation, she was sentenced
to 100 days in jail, and did not appeal.
By the time of the hearing, Appellant had a third child, then
four months old. She testified that she received some child
support from the children’s fathers, one of whom was
incarcerated; and had “child support orders out on them” for
unpaid support. She received food stamps, and paid no rent or
utilities because her housing was government subsidized.
Under direct examination by the state, Appellant admitted
that she had not paid anything toward her costs. Appellant’s
counsel brought up the question of employment on cross-
examination. Appellant denied having had any jobs until very
2
recently, a week or two before the hearing. On redirect the state
followed up on the employment questions, and then Appellant
admitted that she had an under-the-table job cleaning the
professional football stadium in Jacksonville after home football
games. She quit because it was “nasty” and “a lot” of work, and
therefore “it wasn’t working out.” She did not use any of that
money to pay anything toward her probation obligations. She
testified that she had been looking for work, but did not work
while dealing with her dependency case during the first year of
probation (presumably as a result of the felony child neglect
charge), and was sick for several months of her pregnancy during
the second year of probation. She presented no medical argument
or evidence that she could not work at all during her pregnancy
or at any other time during her probation.
Appellant’s probation officer testified that Appellant was
required to submit monthly job-search logs. Over the two years of
her probation, however, Appellant returned only two logs. Both
were blank. It was not until shortly after a Notice to Appear was
issued on Appellant’s violation of probation that she got a job.
She was making $8.50 per hour, and had just received her first
paycheck the day before the violation of probation hearing. She
did not pay or offer to pay anything toward her probation
obligations out of that paycheck.
After Appellant and her probation officer testified, defense
counsel rested and offered to present argument. The trial court
stated that argument was not necessary. He found that Appellant
had willfully and substantially violated her probation, orally
announcing his ruling of a willful and substantial violation twice,
as follows (emphasis added):
I’m going to find that Ms. Thompson is in
substantial and willful violation of her probation for
failing to even attempt to get a job. And based on her
testimony that she actually did have an under-the-table
job, could have paid something, just something, a dollar,
$10, something. She paid absolutely nothing. And based
on her testimony that she just decided to sit there and
do nothing while she was working on her DCF plan,
3
again, I’m going to find that she's in substantial and
willful violation of probation.
The trial court revoked Appellant’s probation and
adjudicated her guilty of felony child neglect pursuant to her
earlier guilty plea. Despite the statutory maximum sentence of
up to fifteen years in prison for felony child neglect, the trial
court sentenced Appellant to only six months in county jail with
credit for the three days she was in jail after her arrest before
bonding out.
Appellant does not dispute her complete failure to pay or
that the trial court found she had the ability to pay and willfully
refused to do so. She argues that the revocation for failure to pay
monetary obligations was improper because there was evidence
that her failure to pay was not willful or substantial; and there
was other evidence besides what the trial court relied on, in that
she complied with other terms of her probation. We find her
argument meritless.
Standards for Willfulness and Revocation
On a violation of probation for nonpayment, the state has the
initial burden of showing nonpayment and willfulness, by a
preponderance of the evidence. § 948.06(5), Fla. Stat. (2015);
Brown v. State, 221 So. 3d 731, 733 (Fla. 1st DCA 2017).
Willfulness arises from a refusal to pay despite an ability to do
so. See Aviles v. State, 165 So. 3d 841, 843 (Fla. 1st DCA 2015)
(citing Del Valle v. State, 80 So. 3d 999, 1012 (Fla. 2011)).
Willfulness also arises from a failure to make “all reasonable
efforts” or “sufficient bona fide efforts legally to acquire the
resources to pay.” See Bearden v. Georgia, 461 U.S. 660, 672-73
(1983); Del Valle, 80 So. 3d at 1005-06 (citing standard set forth
in § 948.06(5), Fla. Stat.); see also Haywood v. State, 987 So. 2d
1285, 1287 (Fla. 1st DCA 2008).
Once the state has shown nonpayment and willfulness, the
burden shifts to the defendant to prove by a preponderance of the
evidence “that he or she does not have the present resources
available to pay restitution or the cost of supervision despite
sufficient bona fide efforts legally to acquire the resources to do
4
so.” § 948.06(5), Fla. Stat. (emphasis added); Del Valle, 80 So. 3d
at 1002, 1015 (approving shifting of burden to defendant and
preponderance standard). The trial court must inquire into the
reasons for the defendant’s inability to pay. Bearden, 461 U.S. at
672-73; Del Valle, 80 So. 3d at 1002. Willfulness does not exist if
a probationer makes “all reasonable efforts to pay the fine or
restitution, and yet cannot do so through no fault of his own.” Del
Valle, 80 So. 3d at 1005-06 (quoting Bearden, 461 U.S. at 668-69).
If the defendant fails to satisfy the burden of proof,
incarceration is “perfectly justified.” Bearden, 461 U.S. at 668.
Upon finding a willful and substantial violation, the trial court
then has broad discretion to make the ultimate decision of
whether to revoke probation. Brown, 221 So. 3d at 733 (citing
Lawson v. State, 969 So. 2d 222, 229 (Fla. 2007)). If the trial court
revokes probation, the court “shall adjudge the probationer or
offender guilty of the offense charged and proven or admitted,
unless he or she has previously been adjudged guilty, and impose
any sentence which it might have originally imposed before
placing the probationer or offender on probation or into
community control.” § 948.06(2)(e), Fla. Stat.
This Court reviews the trial court’s findings for competent,
substantial evidence. Brown, 221 So. 3d at 733-34. We review the
trial court’s disposition for an abuse of discretion. Del Valle, 80
So. 3d at 1009; Savage v. State, 120 So. 3d 619, 621-24 (Fla. 2d
DCA 2013) (separating the CSE standard for willfulness from
abuse of discretion as to ultimate revocation).
CSE of Willfulness
Among Appellant’s probation obligations was the standard
requirement that she “work diligently at a lawful occupation . . .
and support any dependents to the best of your ability.” Even
though she was not separately charged with a violation of this
requirement, Appellant’s lack of effort to obtain employment is
directly relevant to whether she made reasonable efforts to
comply with the financial terms of her probation. Willis v. State,
141 So. 3d 611, 612 (Fla. 4th DCA 2014) (“Such evidence may
include a showing that the probationer failed to make ‘bona fide’
efforts to gain employment and/or legally acquire the resources to
pay.”). While the dissent asserts fundamental error in the trial
5
court’s consideration of Appellant’s failure to make reasonable
efforts to get and keep a job even though Appellant was not
separately charged with violating her probation for failure to
submit completed job-search logs, the law is clear that Appellant
had the burden to prove that she expended “sufficient bona fide
efforts legally to acquire the resources” to satisfy her financial
obligations. § 948.06(5), Fla. Stat. (emphasis added). This
requirement reflects the economic reality of a direct connection
between employment and ability to pay, and between good-faith
effort and gainful employment.
The trial court had before it competent, substantial evidence
that Appellant made no reasonable efforts for nearly two years to
comply with the monetary obligations of her probation. Appellant
injected the issue when she asserted lack of a job as the reason
she could not pay her costs. She submitted only two job-search
logs in two years, and both of those were blank. She admitted she
did not want to work while her dependency case was going on.
She was not pregnant during the majority of her probationary
period, and gave no legitimate medical reason why she could not
work while on probation. She had an under-the-table job, but
chose to leave it. She did not get another job until after a Notice
to Appear was issued on her violation of probation, and then was
able to get a job very quickly. She did not use or offer to use any
money gained from those jobs to pay anything at all toward her
probation obligations. This evidence was sufficient to establish
willfulness and to support the trial court’s discretionary decision
to revoke Appellant’s probation.
Appellant’s sole argument on appeal is that the trial court
unfairly revoked probation because Appellant completed other
terms of her probation—an argument the dissent adopts and then
expands broadly. We reject this argument, because if there is
competent substantial evidence to support the trial court’s
conclusions, it is irrelevant that there may be additional evidence
to the contrary. The evidence before the trial court was legally
sufficient to support the findings of willfulness.
Although the dissent goes far beyond any argument the
Appellant preserved, and among other things attacks the lack of
an express written finding of willfulness, Appellant concedes that
6
the finding was necessarily made—as it was, because it was
expressed orally twice and was clearly the foundation of the
ruling: “I’m going to find that Ms. Thompson is in substantial and
willful violation of her probation . . . .” (Emphasis added.) An oral
finding suffices. See, e.g., Bittle v. State, 100 So. 3d 1194, 1194
(Fla. 4th DCA 2012) (approving an oral finding of willful and
substantial violation); Kadyebo v. State, 15 So. 3d 928, 928 (Fla.
5th DCA 2009) (recognizing oral pronouncement of willful and
substantial violation as supported by competent substantial
evidence); Baldwin v. State, 855 So. 2d 1180, 1180 (Fla. 1st DCA
2003) (affirming revocation where competent substantial
evidence supported an oral pronouncement of willfulness).
Also contrary to the dissent’s sua sponte suggestion of a
constitutional deprivation, there is not and never has been any
requirement that the trial court on a violation of probation obtain
anything remotely approaching a financial affidavit or balance
sheet before determining ability to pay. The trial court is
required to inquire into ability to pay. The trial court did so.
Appellant testified that her basic living expenses were
government-subsidized (food stamps plus HUD-paid housing and
utilities). She received at least some child support from the
fathers of her three children and had taken steps to enforce the
child support obligations. She had the ability to work but chose
not to work, except for a short-term under-the-table job from
which she paid nothing toward her probation obligations, and
chose to quit. Once the Notice to Appear was issued, however, she
very quickly found a job, strongly suggesting that she could have
done so earlier if she had felt sufficiently motivated. She was able
to come up with the money to post bond of over $500 when she
was arrested for felony child neglect, and to pay the $50
application fee for criminal indigent status, on which application
she indicated she had zero debts or liabilities.
These facts are materially distinguishable from the cases
cited by the dissent, in which there was no evidence of ability to
pay or no finding of willfulness. The trial court’s inquiry was
sufficient, and the record reflects competent, substantial evidence
that Appellant had the ability to work and had the ability to pay
something toward her obligations, even if not in full. This is not a
situation of a probationer trying to pay her obligations, yet
7
through no fault of her own, being unable to do so. See Del Valle,
80 So. 3d at 1005-06.
No Abuse of Discretion in Revoking
The willful violation question now resolved, the only question
remaining is whether the trial court abused its discretion in
revoking probation. This is the core of the dissent’s argument,
which results from a disagreement as to the trial court’s exercise
of discretion, coupled with a selective view of the facts. Despite
the dissent’s protestations to the contrary, we are not unaware of
the social dynamics at play here, of which the trial court likewise
was well aware. Yet, the evidence showed that Appellant, though
able to work, failed to exercise reasonable efforts to maintain
employment, simply quit one job, and used none of the little
money she did earn to pay toward her obligations, all the while
receiving food stamps, rent, and utilities at public expense. She
had done it before, on probation from her earlier grand theft
felony, and was incarcerated as a result. In this new violation,
there was competent, substantial evidence of a willful refusal to
comply with monetary obligations. The underlying child neglect
felony could have resulted in imprisonment of up to fifteen years,
yet the trial court imposed sentence of only six months in county
jail. The trial court acted within its broad discretion in the
context of the facts before it.
We cannot say the decision to revoke probation was arbitrary
or fanciful—one no reasonable jurist could make. See generally
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)
(defining abuse of discretion). Evaluating the evidence and
Appellant’s credibility and demeanor were the exclusive province
of the trial court, and we must give great deference to the trial
court’s superior vantage point. See Savage, 120 So. 3d at 622;
Riggins v. State, 830 So. 2d 920, 921 (Fla. 4th DCA 2002). The
dissent’s emphasis on the trial court’s oral comments at the
hearing is misplaced. The trial court heard the evidence,
observed and evaluated Appellant, and exercised discretion to
determine that revocation was proper in this instance. Within our
standards of review—which the dissent would have us ignore—no
legitimate basis for reversal exists.
8
Accordingly, we affirm Appellant’s judgment and sentence.
We also note that the parties agree that an incorrect statutory
reference to section 784.07(2)(b) was added to Appellant’s
judgment in error upon revocation. The trial court is directed to
enter a corrected judgment.
AFFIRMED. REMANDED for correction of scrivener’s error in
judgment.
WETHERELL and KELSEY, JJ., concur; MAKAR, J., dissents with
opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., dissenting.
Twenty-two-year-old Erin Vontez Thompson left her two-
and five-year-old children at home unattended, resulting in a
charge of child neglect. Pursuant to her guilty plea and
negotiated sentence dated June 19, 2015, Thompson was placed
on probation for twenty-four months and—along with other
conditions—was required to pay for total court costs of $917, a
$40 monthly fee plus a 4% surcharge to cover the supervision
costs of the Department of Corrections, and the cost of any
random drug tests. Thompson was and continues to be financially
indigent.
As her two-year probationary period was about to end, the
Department reported on April 18, 2017 that Thompson was in
violation of probation for failing to pay three items: (a) court
costs; (b) supervision costs totaling $960; and (c) a recent drug
test charge of $30. She was appointed a public defender, and a
hearing date was set. The burden was on the State to establish
that Thompson engaged in a substantial and willful violation of
these conditions of probation. Del Valle v. State, 80 So. 3d 999,
1011-12 (Fla. 2011).
9
At the revocation hearing, Thompson testified without
contradiction that she had met all the conditions of probation
(completion of a case plan, mental health evaluations, random
drug tests, and so on), but she “didn’t have the money to pay all
the fees.” When asked if she had the ability to pay the fees in the
past two years, she answered “No, I didn’t,” but said she would
have paid if she had the money to do so. She had no assets, lived
entirely on food stamps and public housing/utility allowances,
and received no child support (the two dads contribute only
“whenever they feel like it”). Until recently, she had no job other
than a transitory one cleaning the local stadium after Jaguars®
football games that paid her $7.50/hour “under-the-table.” She
explained that she was too sick to work during most of her
pregnancy (at the time of the hearing, her third child was four
months old) and that she tried to get work while managing her
dependency case, but only had the temporary stadium job. Her
probation officer testified that the Department gives probationers
job search logs to be turned in monthly; only two had been
received, both blank.
At that point, the trial judge denied the public defender’s
request to make legal argument (“I don’t need any argument”)
and ruled that Thompson engaged in a “substantial and willful
violation of her probation for failing to even attempt to get a job.”
In addition, he concluded that she should have “paid something,
just something, a dollar, $10, something” from her “under-the-
table” job. He adjudicated her guilty, sentenced her to six months
in the Duval County jail, and converted the court costs into a civil
judgment (the Department waived the others, discussed below).
The public defender pointed out that Thompson’s only alleged
violation was not paying the costs/fees, not that she was required
to have or maintain a job—to which the trial judge said, “she
could have just manufactured the money, for all I care. She was
required to pay the money and she didn’t do it. Didn’t even pay a
nickel. There you go.” Other than the judge’s statements at the
hearing, no factual findings—written or otherwise—were made in
support of revocation.
On appeal, Thompson argues that the trial court erred in
finding a substantial and willful violation of the condition that
she pay court costs because no evidence showed, and no finding
10
was made, that Thompson had the ability to pay the costs and
purposefully failed to do so. 1 See Aviles v. State, 165 So. 3d 841,
843 (Fla. 1st DCA 2015) (“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.”) (quoting Del Valle, 80
So. 3d at 1012).
“Ability-to-pay” and “willful refusal” are standards that must
be met under “both state and federal constitutional
requirements” of equal protection and due process. Del Valle, 80
So. 3d at 1005, 1011-12 (both “ensure that an indigent
probationer is not incarcerated based solely upon inability to pay
a monetary obligation.”); see Hamrick v. State, 519 So. 2d 81, 82
(Fla. 3d DCA 1988) (showing that probationer could reasonably
pay “is one of constitutional dimensions which, since the
defendant would otherwise be subject to jail simply for not paying
an amount due regardless of the circumstances, subverts the
requirements of due process and equal protection and the
prohibition of imprisonment for debt.”) upheld by Stephens v.
State, 630 So. 2d 1090, 1091 (Fla. 1994). Indeed, revoking
probation for a failure to pay court costs is fundamental error
absent the necessary findings. See, e.g., Odom v. State, 15 So. 3d
672, 679 (Fla. 1st DCA 2009) (“Because ability to pay is an
essential element for a finding that a probationer willfully
violated probation for failure to pay supervisory costs, the
revocation of Appellant’s probation based on the alleged violation
. . . constitutes fundamental error.”). As our supreme court
1 The majority says that Thompson’s “sole argument on
appeal” is that probation was “unfairly revoked” because she
“completed other terms of her probation,” but that’s inaccurate
because the only term of probation at issue is court costs.
Thompson summarized her argument, saying that the trial court
“erred in finding a willful and substantial violation of probation
and in revoking probation and imposing jail based solely on
[Thompson’s] failure to pay monetary obligations. The evidence
did not show [Thompson] had the ability to pay costs and that she
willfully refused to do so.” That’s it.
11
recently emphasized, a “probationer cannot have his
probation constitutionally revoked absent an inquiry into ability
to pay and a specific finding of willfulness, and a trial court’s
failure to conduct such an inquiry or make such a finding cannot
be deemed harmless.” Del Valle, 80 So. 3d at 1011.
For decades, and consistent with constitutional principles,
this Court has held that there must be a specific and explicit
finding of ability to pay and a willful refusal to make payment.
Crowley v. State, 124 So. 3d 434, 436 (Fla. 1st DCA 2013) (“A trial
court cannot revoke probation for failure to pay court costs
without first explicitly finding that a defendant had the ability to
pay and willfully refused to do.”) (emphasis added); Friddle v.
State, 989 So. 2d 1254, 1255 (Fla. 1st DCA 2008) (“[T]he trial
court did not make a specific finding as to appellant’s ability to
pay restitution.”) (emphasis added); McPherson v. State, 530 So.
2d 1095, 1098 (Fla. 1st DCA 1988) (“Because the trial court failed
to make a specific finding that appellant had the ability to pay
these costs, it erroneously revoked appellant’s probation on these
grounds.”) (emphasis added); Depson v. State, 363 So. 2d 43, 44
(Fla. 1st DCA 1978) (trial court “must make an affirmative
finding that the indigent defendant’s financial condition is such
that payment can be made before entering a revocation on this
ground.”) (emphasis added); Jones v. State, 360 So. 2d 1158, 1160
(Fla. 1st DCA 1978) (“The court should make findings of facts
concerning the aforementioned and should specifically determine
whether appellant had the ability to pay costs during the
probationary period.”) (emphasis added).
Inference and conjecture—whether by trial or appellate
courts—are no substitute for a proper inquiry and specific and
explicit findings as to the constitutionally required elements of
ability to pay and willfulness; absent these protections, society
would be denying basic rights and creating a debtor’s prison,
which our state constitution explicitly forbids. Del Valle, 80 So.
3d at 1005 (holding that imposing burden on probationer to prove
inability to pay by clear and convincing evidence creates
constitutionally unacceptable risk of violating article I, section 11
of the Florida Constitution, which states that “[n]o person shall
be imprisoned for debt, except in cases of fraud.”). As this Court
recently said on two occasions, we are precluded from making
12
inferences, and must look solely to whether a proper inquiry was
conducted, and whether specific factual findings were entered
and supported by sufficient record evidence. Crowley, 124 So. 3d
at 436; Giambrone v. State, 109 So. 3d 1279, 1280 (Fla. 1st DCA
2013). Doing otherwise skates over thin constitutional ice.
As to Thompson, no written findings—let alone specific
findings—were made, nor was there an attempt to establish that
she had the ability to pay and willfully refused payment. The
verbal finding—that Thompson “fail[ed] to even attempt to get a
job”—is directly contradicted by the trial judge saying she should
have paid “something” from her “under-the-table” job; it is also
contradicted by her recently obtained job, which was ignored. No
evidence, let alone competent substantial evidence, supports the
claim that Thomson made no effort, had no work, and—most
pertinent—that she had the financial ability to pay the $917
court costs but willfully refused. The only other verbal finding as
to ability to pay was that Thompson should have “paid
something” from her “under-the-table” job, but that is no
substitute for a specific finding that Thompson had the ability to
pay and willfully did not. The trial court’s superior vantage point
matters little when its findings are insupportable and its inquiry
fails to follow constitutional standards.
At most, the record shows an impecunious young mother of
three preschoolers living entirely on governmental assistance
who, over two years of probation, was ill during six months of her
pregnancy, earned a tiny sum of cash in a short-lived “under-the-
table” job, and a smaller sum in her recently obtained job. But no
inquiry or finding was made as to her ability to pay the court
costs. See Crowley, 124 So. 3d at 436 (“The record reflects that
Crowley testified that he was unemployed, lived with his mother,
received food stamps, and paid no rent or utilities. . . . There is no
evidence affirmatively showing that Crowley had the means to
pay the required court costs, or that he willfully refused to pay
them.”). Simple economic realities suggest that a household
overseen by an impoverished twenty-something single mom with
three young children subsisting on government programs in a
challenging job market is not a great candidate for significant
discretionary cash flow, making an adequate inquiry into and a
specific finding of the financial ability to pay even more
13
important. See, e.g., Allen v. State, 662 So. 2d 380, 381 (Fla. 4th
DCA 1995) (revoking probation where probationer did not have a
job “‘would be contrary to the fundamental fairness required by
[the due process and equal protection clauses of] the Fourteenth
Amendment’”) (quoting Bearden v. Georgia, 461 U.S. 660, 673
(1983)). Thompson’s personal choices, both as to the oversight of
her children and her limited past employment, place her
judgment and initiative in doubt; she bears responsibility for her
predicament. But the sole legal inquiry is whether she had the
ability to pay the court costs and failed to do so willfully. 2
The trial court nonetheless leap-frogged to the legal
conclusion that Thompson should have paid some amount, if only
a trifle, to avoid jail; but he failed to heed the Supreme Court’s
directive that “in revocation proceedings for failure to pay a fine
or restitution, a sentencing court must inquire into the reasons for
the failure to pay.” Bearden, 461 U.S. at 672 (emphasis added);
see also Stephens, 630 So. 2d at 1091 (applying Bearden).
No inquiry was made to assess Thompson’s overall financial
situation, what debts she owed, and so on. Balance sheets have
assets and liabilities; income statements have revenues and
expenses. But only one side of Thompson’s financial ledger was
considered (her limited income), which paints a wholly
incomplete and flawed picture of her economic status. For all we
know, she may be in arrears on sizable household-related bills or
be debt-free. Nor was any inquiry made as to how she used the
2 The majority’s recitation of Thompson’s prior criminal
record (which no party mentioned or relied upon) would seem to
have no bearing as to whether she had the ability to pay court
costs at the time of the revocation hearing in this case; whether
she’s had subsequent run-ins with the law are likewise
impertinent. Our sole task is to decide whether the trial court’s
finding of a willful and substantial violation—without
determining Thompson’s ability to pay given her indigent
status—was error. It is no solace, therefore, that the trial court
twice pronounced a “willful and substantial violation” in his
verbal ruling; the phrase is merely a legal conclusion, one that
must be based on specific and explicit findings of ability to pay
and a willful refusal to do so.
14
“under-the-table” money, and whether such use was
unreasonable in her destitute circumstances. For all we know,
she used the “under-the-table” money to buy necessities for her
children—or frittered it away on lottery tickets. Just like in
Giambrone, “[n]either the State, nor the trial court inquired of
[the probationer] as to [her] income or expenses or the reason for
[her] failure to make the required payments toward the cost of
[her] supervision.” 109 So. 3d at 1280 (emphasis added).
Speculation must abound to fill critically important evidentiary
gaps.
Simply because a financially indigent mom receives a
smidgen of cash from a part-time seasonal janitorial job doesn’t
mean she can spare a dime in the face of pressing family financial
duties or debts. Even the Department of Corrections—in
apparent recognition that Thompson was financially indigent and
unable to pay supervision fees—waived them just before the
hearing. 3 The trial judge expressed anger at the Department for
doing so, 4 and made offhand comments to the public defender for
3 The statutory basis upon which the Department could have
waived Thompson’s payment of supervision costs is that it would
be an undue hardship given her responsibilities to her three
dependents. § 948.09(3)(e), Fla. Stat. (2018) (Department may
exempt a probationer from the payment of such costs if she “is
responsible for the support of dependents, and the payment of
such contribution constitutes an undue hardship on [her].”).
4 Upon learning the Department had waived its supervision
costs, the trial judge went on a tirade, saying: “I’m going to waive
the costs of supervision in every single case I get where I put
somebody on probation. . . . What we’ll do is we’ll do it on the
front end and I’ll waive it for you and we won’t ever have to worry
about that part of things ever again. . . . I guess [Department
officials] don’t need money to run that department. They are just
going to take our tax dollars to run that department and they’re
not going to charge people that they’re supervising to do it.
They’re going to make somebody else pay for it. . . . Why don’t
they take it out of their paycheck? It’s ridiculous.”
15
his role in obtaining the waiver (“How lovely”). Court costs,
however, were “another story,” which were the only item that was
reduced to a civil judgment (the drug test charge was excluded,
presumably waived by the Department).
A deep irony is that Thompson had just gotten gainful
employment (as an “inventory associate” at an inventory and
data collection company for $8.50/hour), which the trial judge
disregarded. Whatever her prior financial circumstances, she had
a decent job at the time of the hearing (she’d just received her
first paycheck of about $110 the prior day), and could potentially
contribute toward the $917 civil judgment for court costs, but her
incarceration swept that option away (a double irony because it
imposed a far greater expense on society in the form of county tax
dollars spent on Thompson’s imprisonment 5 and the collateral
impact—economic and otherwise—on Thompson’s children and
those charged with their interim care). Trial judges have a
responsibility to consider alternative measures other than
incarceration, Bearden, 461 U.S. at 672, but that did not happen
here. And the Department should have taken action earlier, see
5 Putting Thompson in jail imposed costs on the county far in
excess of the court costs she owed. For fiscal year 2014, the
average annual cost per inmate in three Florida counties was:
Miami-Dade ($63,831), Palm Beach County ($58.010), and
Volusia County ($25,586). See VERA INSTITUTE OF JUSTICE, THE
PRICE OF JAILS: MEASURING THE TAXPAYER COST OF LOCAL
INCARCERATION 26-31 (May 2015); see also FED. REG., ANNUAL
DETERMINATION OF AVERAGE COST OF INCARCERATION, 81 Fed.
Reg. 46957 (July 19, 2016) (“The fee to cover the average cost of
incarceration for Federal inmates in Fiscal Year 2015 was
$31,977.65 ($87.61 per day).”); Fiscal Statistics, FLA. DEP’T OF
CORR., http://www.dc.state.fl.us/oth/Quickfacts.html (last
updated December 2017) (“It costs $55.80 a day or $20,367 per
year to house an inmate in a Florida prison during FY 2016-17.
Cost per day to supervise an offender on community supervision
(without electronic monitoring): $5.52.”). Even at the lowest of
these averages, the pro-rated cost of six months in county jail was
over tenfold the $917 court costs.
16
generally Jones, 360 So. 2d at 1160 (probationer should be
advised about exemptions and Department should bring alleged
violation to court’s attention early on “rather than, as here,
waiting until almost two years have elapsed before alleging a
violation of probation has occurred for [failure to pay supervision
costs]”), but that didn’t happen either.
Finally, the trial judge’s action punished Thompson for not
turning in monthly job search logs, but that was neither a
charged basis for revocation 6 nor even a condition of probation.
Only the failure to pay the three categories of costs was specified
in the Violation Report, making the trial court’s uncharged
grounds for revocation invalid; indeed, it is fundamental error.
Haywood v. State, 987 So. 2d 1285, 1287 n.2 (Fla. 1st DCA 2008)
(“The trial court lacked authority to revoke probation on grounds
not alleged in the affidavit. A trial court’s revocation of probation
based on uncharged grounds constitutes fundamental error.”).
And the failure to turn in job search logs “is not a proper basis for
revocation.” Aviles, 165 So. 3d at 843 (failure to submit job search
logs, even if ordered to do so by probation officer, is an invalid
basis for revocation where it is not imposed as a condition of
probation when sentenced).
Under these circumstances, where no findings were made
that a financially destitute probationer had the ability to pay
costs, no inquiry was made as to the reasons for her failure to do
so, no alternatives other than incarceration were considered, and
revocation was based on an improper and uncharged ground, an
abuse of discretion is manifest. State v. Carter, 835 So. 2d 259,
262 (Fla. 2002) (“[T]he appellate court must determine whether
or not the trial court acted in an arbitrary, fanciful or
unreasonable manner in determining that Carter’s violation was
both willful and substantial.”). On this record, incarcerating a
6 One of the fourteen special conditions of probation was that
Thompson would “work diligently at a lawful occupation, advise
[her] employer of [her] probation status, and support any
dependents to the best of [her] ability, as directed by [her]
officer,” but it did not require job search logs and the Department
did not claim the condition as a ground for revocation.
17
financially indigent mother of three for failing to pay $917 of
court costs goes beyond unreasonable; it harkens back to Anatole
France’s adage that the “law, in its majestic equality, forbids the
rich as well as the poor to sleep under bridges, to beg in the
streets, and to steal bread.” Griffin v. Illinois, 351 U.S. 12, 23
(1956) (Frankfurter, J., concurring).
_____________________________
Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Appellee.
18