
    Patricia WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 98-2021.
    District Court of Appeal of Florida, Third District.
    June 16, 1999.
    
      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER, and SORONDO, JJ.
   FLETCHER, Judge.

In March 1993, Patricia White pled guilty to the charge of grand theft of merchandise from Sears Roebuck & Co. in Key West, Florida. Adjudication was withheld and White was placed on five-years probation with a special condition that she pay restitution in the amount of $42,868.00 to Sears, pursuant to a July 30, 1993 restitution judgment, “no later than: A) the end of the period of probation, B) 5 years from sentencing date, C) 5 years after release from D.O.C., or D) as ordered by the judge.” (R. 48).

On February 17, 1998, less than a month before the probationary period was to expire, a warrant alleging violation of probation by Ms. White was issued. The warrant cited as a violation the fact that during the entire probationary period (nearly a full five years at that time), Ms. White had paid only approximately $4000.00 toward the restitution judgment. The evidence at the probation violation hearing showed that Ms. White had spent much of the time during the probationary period in part-time, less-than-lucrative employment while raising a family and incurring the usual family-related expenses which had to be paid from Ms. White’s earnings combined with those of her husband. However, in the year before the probation violation was issued, Ms. White had undertaken a course of self-improvement which included obtaining a license to sell real estate and entering the workforce as an independent-contractor real estate salesperson. In connection with her attempts to improve her financial situation, Ms. White saved enough money to purchase a used $2000 vehicle to use for transportation in her employment. Because she was being paid on commission and income taxes were not being withheld, she set aside the amount of her estimated tax obligation, some $1,400, in a savings account. She testified that all the extra money the family obtained went to pay toward the restitution judgment. Both Ms. White and her probation officer testified that the small amount of money paid toward the restitution was never made a big issue with Ms. White, even though she was not “up-to-date” on her payments when the probation officer was assigned to her case. The testimony was undisputed that none of the several probation officers Ms. White reported to ever threatened to violate her probation for insufficient payments on the restitution judgment, and all had told her to just pay whatever she could toward the restitution. All evidence showed that Ms. White successfully completed all conditions of her probation except for the restitution, and that no prior warrants of violation were ever filed during the five-year period.

Despite the evidence described above, the trial court found a “substantial and wilful violation of probation for failure to satisfy your [Ms. White’s] restitution obligation.” In making this ruling, the trial court cited the fact that Ms. White had apparently led “a good middle-class life style” during the probationary period and had been able to “put away some savings.” (R. 153). Ms. White was adjudicated guilty of grand theft and the restitution judgment was converted to a judgment lien.

We believe the trial court abused its discretion in violating Ms. White’s probation because, under the circumstances of this case, the evidence does not support a finding that Ms. White’s failure to pay the entire restitution judgment by the end of her probationary period was willful. See Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996); Green v. State, 620 So.2d 1126 (Fla. 1st DCA 1993); Jordan v. State, 489 So.2d 224 (Fla. 2d DCA 1986); Winfield v. State, 406 So.2d 50 (Fla. 1st DCA 1981). Ms. White, apparently an otherwise model probationer, should not be penalized at the very end of the probationary period for her efforts to improve her and her family’s economic status through training and preparation for a new career, which, in turn, should allow her to pay more toward the restitution judgment in the future. The purchase of the used car and the setting aside of funds to cover the income tax obligations were reasonable under the circumstances.

Although the record supports the proposition that Ms. White paid as much as she was able to pay, there remains an outstanding balance on the restitution order which is owed to Sears Roebuck. As previously stated, the trial court reduced the unpaid amount to a judgment, see § 775.089(3), Fla. Stat. (1997). Ms. White does not challenge that portion of the trial court’s order in this appeal.

Accordingly, we reverse the probation violation and adjudication of guilt in this case. By this reversal, we do not disturb that part of the order on appeal which imposed a civil judgment in the amount of the outstanding restitution balance.

Reversed in part and remanded to the trial court for further proceedings.

COPE, J., concurs.

SORONDO, J.

(concurring)

I agree with the majority that the lower court’s revocation of the defendant’s probation must be reversed. I write briefly to observe that yet again a criminal defendant who was treated mercifully by the trial court with the understanding that she •would make the victim of her criminal acts financially whole, has successfully avoided accomplishing what she agreed to do and will not be punished for her failure to do so. As a result, the grant of mercy the victim agreed to at time of sentencing, i.e. a sentence of probation with a special condition of restitution, as opposed to seeking an incareerative sentence or a probationary sentence with more onerous special conditions, is ultimately rewarded by a sense of total frustration.

Although I agree that no probationer should be punished for non-payment of restitution without a showing that he or she has the ability to pay, I feel strongly that victims of crime need to be made aware of the painful reality that restitution in many, if not most, criminal cases is wholly illusory. They should also be told that if leniency is afforded the defendant at sentencing on condition that he or she pay restitution and the defendant does not pay, punishment is rarely possible. If, knowing that, the victim still wishes to chance collection of his or her financial losses in this manner, the choice will at least be knowingly and intelligently made. The alternative to such disclosure is a profound sense of betrayal on the victim’s part and the bitterness that will inevitably follow. At a time when the public increasingly looks to the courts for justice, this is a sense of betrayal and bitterness the judiciary would do well to avoid. 
      
      . Although the victim in this case is a large corporation which will be able to write off and perhaps pass on the cost of the loss to its customers, in most cases the victim is not so fortunate. This is particularly true in cases involving crimes where restitution is intended to cover the cost of medical expenses incurred by the victim as a result of the defendant’s criminal conduct.
     