Fulton v. State

871 So. 2d 1037, 2004 Fla. App. LEXIS 6255, 2004 WL 950071

Opinion

PER CURIAM.

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.