Failure to Pay Restitution

Yes, it can be a crime to be broke, especially if you're on probation.  When restitution or costs of supervision are a condition of probation, failing to make the required payments can lead to a violation of probation.  So, how do we defend such allegations?

First of all, beating a restitution violation requires testimony that the probationer could not afford the required payments.  Expect the judge to ask such questions as: Do you have cable? Satellite? Do you smoke?  Do you drink?  Been on vacation recently?  Been to any good concerts?  What kind of car do you drive?  Answering yes to any of these questions can be trouble, as the judge may decide that probation was violated because you had $100 for a ticket to Lady Gaga at the Amway Center, but didn't put that $100 towards restitution.  Or, if you smoke, that $6 per day could have gone to restitution.  You get the point....

Section 948.06(5) Florida Statutes handles violations of probation for "Failure to pay restitution or cost of supervision".  The statute does not require that the state prove a probationer was able to make payments, the burden of proof rests on the defendant to show his inability to pay.  So, if the defense is inability to pay, the probationer must prove such by clear and convincing evidence--namely--that he does not have the present resources available to pay restitution or the cost of supervision.  Part of this burden requires some proof that legitimate efforts were made to acquire the money to pay--such as trying to find employment or attempts to sell assets.

As you know, a VOP must be "willful".  It is not a willful and substantial violation of probation when a probationer does not have the means to pay after making sincere attempts to do so.

Another common problem in restitution cases is a violation based upon failing to pay restitution as per the payment schedule made up by a probation officer.  It is against the law for a probation officer to create a restitution payment schedule, only a judge can do that.  However, words on a page entitled "Laws" have never stopped probation officers in the past, and rest assured this issue will continue to come up.

Also, watch out for judges that want to extend probation due to a failure to pay restitution.  Courts have no authority to extend probation when there is no ability to pay.  If that were the case, imagine how many disabled probationers would be on probation indefinitely?  However, courts may impose "alternate measures" such as community service, or the entry of a judgment against the probationer, which then could be enforced against the probationer's property.

As you can see, there are plenty of defenses to a VOP involving the failure to pay.  For more details on failure to pay violations, read my article entitled "VOP for Being Poor".  And, when accused with such a violation, you now know who to call.  Thanks.
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