Osta v. State, 880 So. 2d 804 (Fla. Dist. Ct. App. 2004)

Cases | Osta v. State, 880 So. 2d 804 (Fla. Dist. Ct. App. 2004) | 2018

The defendant pled nolo contendere to failing to remit state taxes and grand theft in the third degree and was sentenced to five years probation and ordered to pay restitution to Florida’s Department of Revenue. After making few and sporadic payments, the defendant was charged with probation violations for failing to pay restitution. At the probation hearing, the defendant testified that “he did not believe he owed the State the money since he was allowed to make meager payments or even skip payments for nearly three years before the affidavit of violation was filed.” The trial court found him guilty for failing to remit sales tax and grand theft and sentenced him to three days time served on each count and entered a money judgment for the outstanding restitution balance. On appeal, the defendant argued that the State failed to present evidence demonstrating his ability to pay more than he had paid. The court of appeals held that “in order to revoke probation for failure to pay restitution the burden is on the State to prove the ‘willfulness’ of the violation, and in order to prove ‘willfulness’ the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so” and that the State fulfilled this requirement with the testimony that the defendant frequently traveled out of state. The trial court’s ruling was affirmed.