PERNICE v. STATE (1999)

District Court of Appeal of Florida,Second District.

Gary PERNICE, Appellant, v. STATE of Florida, Appellee.

No. 98-00509.

Decided: November 17, 1999

Domingo G. Alvarez, III, Winter Haven, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

Gary Pernice appeals an order revoking his probation and sentencing him to nine years' imprisonment for three counts of grand theft. The State alleged two probation violations: a violation of special condition 4 based on Pernice's failure to make a lump sum restitution payment of $500,000, and a violation of condition 3 based on Pernice engaging in the unauthorized practice of law. The trial court found Pernice in violation of both conditions. The record supports the court's findings as to condition 3; however, the court erred by finding Pernice in violation of special condition 4 without first finding that Pernice had the financial ability to make the lump sum restitution payment. See McCoy v. State, 730 So.2d 803 (Fla. 2d DCA 1999). Accordingly, we affirm the revocation of Pernice's probation, but remand with directions to remove the violation of condition 4 from the revocation order.

Affirmed in part; remanded with directions.

PER CURIAM.

CAMPBELL, A.C.J., NORTHCUTT, and STRINGER, JJ., Concur.

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