Betancourt v. Manning

679 So. 2d 83, 1996 WL 526235

• Court: District Court of Appeal of Florida
• Decided: September 18, 1996
• Docket: 96-2185
• Status: Published

Opinion

679 So.2d 83 (1996)

Antonio BETANCOURT, Petitioner,
v.
Donald MANNING, Director, Dade County Department of Corrections and Rehabilitation, Respondent.

No. 96-2185.

District Court of Appeal of Florida, Third District.

September 18, 1996.

Bennett H. Brummer, Public Defender and Louis Campbell, Assistant Public Defender, for petitioner.

Robert A. Butterworth, Attorney General and Sandra S. Jaggard, Assistant Attorney General, for respondent.

Before SCHWARTZ, C.J. and GERSTEN and GODERICH, JJ.

PER CURIAM.

The order finding the petitioner in civil contempt and committing him to jail for his failure to pay past due child support and attorney's fees is deficient on its face because it does not contain a finding that Betancourt has the present ability to pay the purge amount. See Johnson v. Felton, 655 So.2d 1286 (Fla. 3d DCA 1995); Fennell v. Felton, 655 So.2d 1316 (Fla. 3d DCA 1995); Pino v. Felton, 647 So.2d 335 (Fla. 3d DCA 1995). Moreover, the record contains no evidence that he, in fact, has that ability. Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). As a result, in accordance with our prior order releasing the petitioner from custody on his own recognizance and the "confession of error" subsequently filed by the respondent, judgment in habeas corpus is hereby awarded.

Habeas corpus granted.