          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-5290
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PHOEBE FLANAGAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                         March 18, 2019


BILBREY, J.

    Appellant challenges the conclusion of the trial court that a
payment plan established under section 28.246, Florida Statutes
(2017), is reasonable. We affirm.

     Following Appellant’s adjudication of guilt for trafficking in
cocaine, possession of cocaine with intent to deliver, possession of
paraphernalia, and violating a prior order of probation, she was
sentenced to 41.1 months in prison and ordered to pay certain
costs and fines. Pursuant to section 322.245(5)(a), Florida
Statutes, Appellant’s driver’s license was suspended in
September 2014 for failure to pay her fines and costs. Upon her
release from prison, Appellant sought a payment plan for these
outstanding fines and costs so she could seek reinstatement of
her driver’s license. On the authority of section 28.246(4), the
clerk of the court for Escambia County enrolled Appellant in a
plan requiring payment of $10 per month.

     As permitted by section 28.246, Appellant challenged the
reasonableness of her payment plan contending that the housing,
utilities, and insurance that Appellant’s mother pays on the home
where Appellant resides rent-free should not be considered as
income. The trial court found that these recurring in-kind
payments from Appellant’s mother exceed $500 per month and
therefore the payment plan was reasonable.

     Appellant argues, among other things, that a payment plan
is reasonable only if the required monthly payment amount is
equivalent to two percent of her monthly net income, and since
net income is defined in section 27.52(1)(a)1. as “consisting of
total salary and wages, minus deductions required by law,
including court-ordered support payments,” consideration of
anything other than a salary or a wage in calculating a payment
is improper and hence unreasonable.        Appellant reads the
applicable statutory law too narrowly.

     Section 28.246(4) provides that an individual may seek a
payment plan from the clerk of court for payment of court-
ordered fees, service charges, costs, and fines. The monthly
amount required under such a plan “is presumed to correspond to
the person’s ability to pay if the amount does not exceed 2 percent
of the person’s annual net income, as defined in s. 27.52(1),
divided by 12. The court may review the reasonableness of the
payment plan.” The presumption established in section 28.246(4)
regarding a person’s ability to pay does not limit what a trial
court may consider in determining the reasonableness of a
payment plan. In this case, as noted, Appellant has benefited
from substantial recurring family support in addition to receiving
social security disability benefits. Regular support from family
as well as social security benefits are matters which are to be
considered in determining whether a party is indigent under
section 27.52. That such assets may also be considered by a trial
court in assessing the reasonableness of a payment plan is
consistent with the statutory scheme.


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    Therefore, we agree the trial court correctly considered
Appellant’s in-kind income as a matter of law and find that the
order is supported by competent, substantial evidence.

    AFFIRMED.

ROWE and KELSEY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Benjamin James Stevenson, ACLU Found. of Fla.; Jason Cromey,
Pensacola; and Nancy Abudu, ACLU Found. of Fla., Miami, for
Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee,
and Codey L. Leigh, Pensacola for Appellee Pam Childers,
Escambia County Clerk of Circuit Court and Comptroller,
Pensacola.




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