Opinion
Nos. UU-445, UU-446.
September 9, 1981.
Appeal from Circuit Court, Duval County; Dorothy H. Pate, Judge.
Michael Allen, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr. and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
Two petitions for delinquency were filed against appellant, one charging appellant with prowling and the second alleging appellant had violated his community control by (1) being arrested for prowling, and (2) failing to make restitution as required. The juvenile division of the circuit court found the charges to be true and adjudicated appellant delinquent. We reverse.
The State established only that appellant was on a city sidewalk in a commercial area of Jacksonville at two o'clock in the morning. This evidence fails to meet the standards set forth for a prowling conviction in State v. Ecker, 311 So.2d 104 (Fla. 1975), or the lesser standard of the greater weight of the evidence necessary to support a probation violation based on the prowling arrest. Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977). The violation of probation cannot be affirmed on the failure of appellant to make restitution, as the State failed to produce any evidence showing that appellant had the financial ability to make the payments. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).
The order is REVERSED.
McCORD, SHIVERS and BOOTH, JJ., concur.