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A violation of your probation must be both willful and substantial in order for the trial court to either modify or revoke your probation for a violation. The word willful is a relatively simple concept, but is very important in probation violation hearings. In order for the court to find a person willfully in violation of the terms of his probation, the State of Florida must do more than establish that the defendant didn't comply with the terms, but the State of Florida must also establish that the person had the ability to comply.  This type of situation often comes up in probation violations that involve monetary obligations. The State of Florida bears the burden of proving that the person had the ability to comply with the terms of his probation, but did not to do so. However, since the burden of proof in a probation violation hearing is significantly lower than in a criminal trial, it is usually best for the defense to present some evidence establishing the defendant's income & expenses so the court can see that the defendant does not have the ability to comply with the terms of probation. In the case of Ianieri vs State of Florida, the Fourth District Court of Appeal, using an abuse of discretion standard of review, reversed and remanded the case for the sole purpose of establishing a payment plan which is consistent with the defendant's ability to pay. Defendant was sentenced to a term of incarceration which was to be followed by a period of probation and an immediate payment of restitution to the victim after being convicted on a guilty plea of 2 counts: (1) driving under the influence causing or contributing to serious bodily injury; &, (2) driving under the influence causing or contributing to injury to a person or property. The court of appeal relied on the case of Shacraha v. State, 635 So. 2d 1051 (Fla. 4th DCA 1994), that stated that where the proof didn't show defendant's ability to pay the restitution immediately, as in this case, the trial court should set a future date for payment or establish a payment schedule which is based on the defendant's actual ability to pay. For more information on Criminal Lawyer Miami FL , Criminal Attorney Miami FL and Violation of Probation Miami FL please contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard 28th Floor Miami, FL 33131 (305)429-3285
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