“Debtors’ Prison”: Why You Can’t Be Jailed Just for Being Broke (Del Valle v. State)

By: John Guidry

This is America, right? We have a Constitution, right? Well, there are lots of words in our Constitution which, apparently, some judges haven’t taken the time to read. The Bottom Line: Our Constitution bans imprisonment for debt. Even so, some Orlando probationers find themselves unable to afford the massive fees, fines, restitution, and surcharge costs. When they can’t pay, a violation warrant is filed.

The Trap: On the technical side, Florida Statute 948.06(5) set up a “Debtors’ Prison” scenario. It said that if you didn’t pay, it was your burden to prove poverty by “Clear and Convincing Evidence.”

• The Problem: In a criminal case, the State is supposed to prove guilt. But this law shifted the burden to the defendant to prove innocence (poverty).

Did your PO violate you because you lost your job and couldn’t pay?

Poverty is not a crime. Call John today at (407) 423-1117.

The Case: Del Valle v. State (The Constitutional Fix)

Can this be fixed? Yes. Our Florida Supreme Court struck down the “Clear and Convincing” requirement as unconstitutional in Del Valle v. State, 80 So. 3d 999 (Fla. 2011).

• The Facts: Del Valle was on probation for possession of cocaine and grand theft. He was ordered to pay $1,809 in restitution.
• The Violation: He fell $1,040 behind. He was unemployed.
• The Error: The trial court violated his probation without asking why he hadn’t paid. The Judge simply noted the debt and reinstated probation with harsh terms.

The Ruling: Willfulness is Required Del Valle appealed, arguing that the Equal Protection and Due Process clauses forbid incarcerating an indigent person solely for inability to pay. The Florida Supreme Court agreed and overturned the violation.

• The New Rule: Before a judge can incarcerate you for failure to pay, they MUST make a specific finding that you had the Ability to Pay and Willfully Refused to do so.
• The Burden of Proof: The Court ruled that making the defendant prove poverty by “Clear and Convincing Evidence” was too high. The burden is now the lower “Preponderance of the Evidence” standard.

The “Willfulness” Test

If you are violated for money, the hearing must answer two questions:

1. Did you have the money? (If yes, and you spent it on new rims instead of restitution, you are going to jail).
2. Did you try to get the money? (Did you apply for jobs? Did you sell assets? If you made “bona fide efforts” but still failed, the violation is NOT willful).

If the violation is not willful, the Judge cannot send you to jail. They must consider “alternate measures” (like extending probation or converting the debt).

John’s 2026 Update: The Civil Lien Solution & Aribu

Note: In 2011, Del Valle saved us from the high burden of proof. In 2026, we use “Civil Liens” to save you from prison.

1. The Aribu Standard (2025) The Second District Court of Appeal recently hammered this home in Aribu v. State (2025).

• The Ruling: The Court held that it is Fundamental Error for a judge to revoke probation without an explicit, verbal finding of “Willfulness” and “Ability to Pay.”
• The Defense: If the judge forgets to ask about your finances on the record, we can get the revocation overturned immediately.

2. The “Civil Lien” Strategy If you truly cannot pay, we argue for a Civil Lien.

• How it Works: The Judge converts your criminal restitution/fines into a Civil Judgment.
• The Result: You are released from probation successfully. The debt still exists (it hurts your credit score), but they can no longer put you in a cage for it. It becomes just like a credit card debt.

3. The “Lifestyle Audit” Prosecutors are smarter now.

• The Danger: They will pull your social media. If you claim you have no money for restitution but your Instagram shows you at Disney World or getting a new tattoo, they will use that as proof of Willfulness.
• The Advice: If you are claiming poverty, live like it. Do not post luxury purchases while owing the State money.

Don’t Go to Jail for a Bill

If you are making a good faith effort to pay but just can’t make ends meet, the law protects you. Do not let a probation officer bully you into admitting a violation you didn’t willfully commit.

Call me at (407) 423-1117. Let’s prove your efforts.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.