Failure to Pay Restitution

Yes, it can be a crime to be broke, especially if you’re on probation.

Yes, you can go to jail or prison simply because you didn’t pay restitution.

Yes, we can beat a violation of probation for failing to pay restitution.

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. This is the first mistake most attorneys make when defending a VOP on a restitution issue, there must be sworn testimony that the payments were not affordable. Now, affordable is a squishy term. Expect the judge to ask such questions as: Do you have cable? Wifi (who doesn’t)? Do you smoke? Do you drink? Been on vacation recently? Been to any good concerts? What kind of car do you drive? Do you have the latest iPhone? 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.

Let me repeat.

The burden is 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”. We won’t drill down too deep on what this means, except to say that several courts have held that it is not a willful violation of probation when a probationer does not have the means to pay restitution after making sincere attempts to do so. Now, what constitutes a sincere attempt to pay will vary on a case by case basis, so you should consult a local defense attorney on how your particular judge views these situations.

Another common problem in restitution cases is a violation based upon failing to pay restitution as per a payment schedule made up by a probation officer. Sometimes, a court will order restitution but will not set a monthly amount to be paid. When probation sees this, their urge is to go ahead and set up a payment plan. However, it is against the law for a probation officer to create a restitution payment schedule, only a judge can do that. But, since when does the law stop probation?

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”. Also, the Florida Supreme Court addressed the problems that arise out of violations for failure to pay in the case of Del Valle v. State, 80 So.3d 999 (Fla. 2011). And, when accused with such a violation, you now know who to call. Thanks.

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