Friday, October 10, 2014

Restitution / Probation / Probation Violation / Michael A. Haber, Esq. **ARRESTED / **305DUI

Q:  What if I am not able to pay all of my restitution by time I am suppose to get off of felony probation?  I have about $10,000 I have to pay back to someone I stole from. What will happen when my termination date comes (feb. 2016) and it is not all paid off?
A:  There is no such thing as a debtor's prison in the US or FL. That said, if you willfully and substantially fail to comply with the conditions of your probation - including making court ordered payments - then a violation can be filed and, if the court finds that you both willfully and substantially failed to comply then you can be incarcerated. 

But in order to incarcerate you for failure to pay the court must first hold a hearing and afford you due process, including a right to present evidence that your failure to make your Court Ordered payments was not willful - that is to say that you could not (not that you chose not to) make the payments. If you truly could not then your violation should not be considered "willful", and without that necessary component you cannot be violated and incarcerated.

The Court has other alternatives to jailing you; namely it can choose to extend your probation (so as to afford you more time to pay) or it can convert your payments into what is referred to as a "criminal order" (a non-dischargeable debt which you can be held to pay even after your probation is terminated).

All of this said, if you know that you will not be able to make your payments (as it appears from your question) then you will be best advised NOT to wait for your PO to violate you and instead you should consider causing the matter to be brought before Judge beforehand - thereby hopefully impressing your Judge by your preemptive demonstration of a respectable level of acceptance of responsibility.

If you truly cannot make your payments and if you have a lawyer then you should discuss this with her / him and have a preemptive motion filed; if not then you should consider asking your PO if s/he will assist you to get the matter in front of the Judge now, as opposed to waiting for an imminent violation.

Either way so long as you are not spending your money on superfluous things and you are truly strapped for cash (and given your tragic familial issues) then I am confident that the good Judges of the 18th Judicial Circuit will show some compassion and understanding to your situation.

I hope that I have been helpful in answering your question.

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) 



Michael A. Haber, P.A.:   Creative, effective and zealous criminal defense advocacy since 1991.

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1-888-SHARK-8-1, 305-381-8686, 305-798-2220, **ARRESTED, **305DUI, **MIAMIDUI, **MIAMILAW or **HABERLAW.

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