
    Mack TEDDER, Appellant, v. STATE of Florida, Appellee.
    No. 72-803.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1973.
    Rehearing Denied Jan. 21, 1974.
    
      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Guy E. LaBalme, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.

McNULTY, J., dissents with opinion.

McNULTY, Judge

(dissenting).

I dissent. This appeal is from an order revoking appellant’s probation and imposing a prison sentence. The original order of probation included a provision requiring appellant to “pay restitution of one-third of all damages, loss and destruction arising out of crimes committed in Manatee County” payable at the rate of $10.00 per week. Though the record is silent on it I assume that this condition related only to specific offenses which were within the mutual knowledge of the sentencing court and appellant. In any case, the trial court found that appellant violated that condition.

The sole evidence presented by the state in support of revocation was the testimony of appellant’s parole supervisors who testified merely that to their knowledge appellant did not make the required restitution payments. Neither of the two supervisors who testified made an investigation as to why such payments were not made, nor did they make inquiry of appellant as to why. Appellant presented his own testimony and that of his wife and of his mother, all of whom testified as to the difficulties appellant was having getting a job, getting paid for the work he in fact did do on occasion, the transportation difficulties he was having getting to and from work in his old infirm automobile on those occasions when he did have employment and as to his other personal problems as an 18 year old husband and expectant father.

The trial court made no findings concerning appellant’s ability to comply with the subject condition or as to the willfulness of noncompliance. In my view, the mere noncompliance with such condition cannot be the basis for revocation of probation absent a finding of ability to comply and a willful noncompliance. Probation is a grace, concededly. But once imposed it assumes certain essentials of a right; and it cannot be revoked arbitrarily or without sufficient basis upon which to predicate an intentional violation thereof. A revocation of probation proceeding is not a de novo opportunity to impose a prison sentence.

I would reverse.  