Opinion
Case No. 4D02-4357.
Opinion filed May 5, 2004.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ilona M. Holmes, Judge, L.T. Case No. 99-22335 CF10A.
Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Gary Fulton, appeals from the trial court's order revoking his probation for failure to pay restitution. He argues that his failure to pay was not willful or substantial. We agree.
"In order to support a revocation of probation, the State has the burden of proving by the greater weight of the evidence that the probationer's violation was both substantial and willful."Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998).
Based upon the record on appeal, we find that the State failed to meet this burden of showing that appellant's violation was both willful and substantial. We, therefore, reverse and remand for the reinstatement of appellant's probation.
REVERSED and REMANDED.
FARMER, C.J., GUNTHER and HAZOURI, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.