5D03-3061 Kirk Oliver v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3061

Case Date: 07/26/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

KIRK OLIVER, Appellant, v. CASE NO. 5D03-3061

STATE OF FLORIDA, Appellee. / Opinion filed July 30, 2004. Appeal from the Circuit Court for Seminole County, O. H. Eaton, Judge. James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. THOMPSON, J. Kirk Oliver contends that the trial court abused its discretion in finding him guilty of a probation violation for failing to make sufficient restitution payments. We affirm.

As a condition of probation, Oliver was ordered to pay $246,761 in restitution.1 Although ordered to pay $1,200 per month restitution, Oliver had been paying only $100-150 per month. The trial court determined that Oliver was tithing $175 per month to his church; paying $50 a month for clothing; spending $50 per month to eat out; paying $35 per month for haircuts and grooming; and paying his father and grandmother $75 each per month because they helped him financially when he was in jail. The court also questioned Oliver about the monthly "surplus" after he deducted his expenses from his income. Oliver established, without contradiction, that his net income had been about $30,000 for several years. The trial court ruled that although Oliver could not pay the required $1,200 payment, he was capable of paying an amount greater than $100 to $150 per month. The trial court increased the restitution amount to $400 per month. Compare Robinson v. State, 773 So. 2d 566 (Fla. 2d DCA 2000) (state failed to show probation violation where defendant was making payments on the restitution owed, and nothing in the record indicated that defendant could pay a greater amount). We conclude that it was within the trial court's discretion to find a wilful violation of probation and to increase the restitution payments. Bearden v. Georgia, 461 U.S. 672-673 (1983). AFFIRMED. SHARP, W. and MONACO, JJ., concur.

Oliver owed $230,000 to victims because of a scheme he devised. In the scheme, Oliver would purchase a person's home and give the person back a second mortgage at a greater interest rate after receiving $10,000 from the person. Oliver would then take the home and mortgage elsewhere, but would not pay the mortgage. Many of the victims lost their homes, but some were able to keep their homes if they were able to pay approximately $10,000-15,000 and resume paying the mortgages. -2-

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