          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4687
                  _____________________________

PATRICIA ANN BANKS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.

                         February 4, 2019


WINOKUR, J.

     Patricia Banks appeals the trial court’s order revoking her
probation for failing to pay court costs or completing community
service. We find that the trial court did not make the findings
required for revocation due to the failure to pay court costs, and
that the community service option was not a mandatory condition
of probation. Thus, we reverse the revocation of Banks’ probation.

    Condition 10 of Banks’ probation order provided that she “will
pay” court costs. Special condition 28 of the order provided that she
“may perform [community service hours] in lieu of court costs.”
Banks neither paid court costs nor performed community service.
The trial court did not determine if Banks had the ability to pay
her court costs, but determined she had the ability to perform
community service hours, and revoked her probation.

    Before probation may be revoked, the trial court “must find
that the probationer willfully and substantially violated a
condition of probation.” Del Valle v. State, 80 So. 3d 999, 1012 (Fla.
2011). “In probation revocation proceedings for failure to pay a
monetary obligation as a condition of probation, the trial court
must find that the defendant’s failure to pay was willful—i.e., the
defendant has, or has had, the ability to pay the obligation and
purposefully did not do so.” Id. Because the trial court declined to
make a determination as to Banks’ ability to pay, we cannot affirm
revocation on this ground.

     We also cannot affirm revocation due to Banks’ failure to
perform community service because the probation order did not
obligate her to do so. Banks was required to pay court costs (“You
will pay . . . court costs”) and permitted to perform community
service hours in lieu of paying court costs (you “may perform”
community service “in lieu of court costs”). This special condition
provided Banks with an alternative to paying costs if she wished,
but she did not. As such, the requirement to pay costs remained in
place, and Banks cannot have her probation revoked for failing to
pay costs unless the court finds that she has the ability to pay. See
Williams v. State, 165 So. 3d 870 (Fla. 1st DCA 2015); Crowley v.
State, 124 So. 3d 434, 436 (Fla. 1st DCA 2013).

     The dissent agrees that “it is true that ‘will’ or ‘shall’ is
generally mandatory and ‘may’ is generally permissive,” but
believes that we should look to the context and interpret “may” as
“shall” with regard to the community service option. We agree that
context matters, but the dissent makes too large a leap—
interpreting a word that is “generally permissive” to mean the
opposite—when considering that these words were written in a
probation order. “Fundamental fairness requires that a defendant
be placed on notice as to what he must do or refrain from doing
while on probation.” Hines v. State, 358 So. 2d 183, 185 (Fla. 1978);
see also Lawson v. State, 969 So. 2d 222, 230 (Fla. 2007) (“In
addition to the procedural due process that is required at the time
of an alleged violation, the trial court and the probation order must
also adequately place the probationer on notice of conduct that is

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both required and prohibited during the probationary period.”).
The dissent makes a cogent contextual argument, but we find that
the order did not provide sufficient notice that, here, “may” meant
“shall.”

      The State’s intent may have been to set forth a mandatory
alternative, and it could have done so with compulsory language—
e.g., “You will perform community service if you do not pay court
costs.” Because the performance of community service was not a
required condition of probation, we REVERSE the revocation of
probation and REMAND for a determination as to Banks’ ability to
pay court costs.

MAKAR, J., concurs with opinion; WINSOR, J., dissents with
opinion.
             _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
             _____________________________

MAKAR, J., concurring with opinion.

     I concur that revoking Patricia Banks’s probation was
impermissible based on the language of her probation order, which
required her to pay $671 of court costs. It did not require, however,
that she perform community service if she lacked the ability to pay
them. To the contrary, the clear language of the order merely
allowed her to perform community service in lieu of paying these
costs. Had it said Banks “must either pay court costs or do
community service,” a different meaning and outcome would
result.

     Under the probation order, the only question was whether
Banks had the ability to pay the court costs at the time of the
revocation hearing. After hearing testimony from Banks and her
probation officer as to her financial situation and her failure to
perform community service, the trial judge decided not to “get into
the issue of the financial capabilities” of Banks to pay the court
costs, in part, because “we’re just used to that nobody pays them.”

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Instead, the focus was solely on Banks’s failure to complete
community service hours, which the trial court deemed mandatory
(“So I am going to find that there is a violation of probation. There
is a willful and substantial violation as it relates to community
service, not as to payment.”). He modified Banks’s probation,
extending it by six months, and ordered that she complete
community service hours during that time period.

      In doing so, the trial court transformed a discretionary
condition of probation into a mandatory one. By the probation
order’s plain language, Banks was required only to pay court costs.
She had the discretion to perform community service, but it was
not mandated. A box on a standard pre-printed probation form was
checked that said “The Defendant may perform community service
in lieu of court costs at the rate of $10 per hour.” (Emphasis added).
This option gave Banks the ability to reduce or fully satisfy the
$671 owed by performing up to sixty-eight hours of community
service if she chose to do so (she worked full-time, had physical
ailments, and shouldered family responsibilities that, in her view,
made additional physical work infeasible). Because the trial court
did not address and resolve the only mandatory condition of
probation, i.e., Banks’s payment of court costs, reversal is
warranted and a remand is necessary to address the matter anew.

     That said, trial judges justifiably are frustrated when they
lack objective financial information to assess the ability of
probationers to pay court-ordered costs. Bemoaning this lack of
information, the trial judge noted that “we just trust what the folks
are telling us, that, ‘I can’t pay it.’” If defendants routinely say they
can’t pay court costs, or fail to provide objective evidence as to their
financial status, mandatory community service hours become an
option to consider; they don’t generate revenue, but they do provide
a means for probationers to do something productive to pay back
society or better themselves (provided the hours aren’t merely
make-work).

     Finally, to make community service a mandatory alternative,
probation orders would simply have to say that defendants must
pay court costs or perform community service, and that the willful
failure to do one or the other is a violation of probation. Rephrasing
the probation order at issue to achieve this result is preferable to

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an appellate court straining to conclude that “may” means “must.”
And a community service option is unlike an extension of a tax
filing date. A tax extension is not an alternative to a tax filing: it
merely postpones the inevitable; a tax return must be filed. In
contrast, community service is an alternative for payment of court
costs, albeit an imperfect one (the payment of court costs requires
the defendant’s money, while community service requires the
defendant’s labor). Given these differences and distinctions, a
court should not impose a mandatory contribution of a defendant’s
labor in lieu of a payment of money absent clear language of the
intent to do so.

WINSOR, J., dissenting.

     Patricia Banks fraudulently obtained thousands in welfare
benefits. After she was convicted of felony welfare fraud, the trial
court sentenced her to probation rather than prison. The probation
order imposed conditions, and Banks did not comply with them.
None of that is challenged on appeal. The issue is whether Banks’s
failure to comply was willful. The trial court found it was, and that
finding was supported by competent, substantial evidence. We
should affirm.

     At the revocation hearing, the parties disputed whether
Banks had the ability to perform community service. Banks
testified that she worked forty hours a week at a sandwich shop
and was too tired to do community service on top of that. She
admitted she had done zero hours but insisted she just couldn’t:
“Sir, if I had the ability to do those community service hours, I
would have.” But the court rejected Banks’s testimony and made a
factual finding that Banks indeed had the ability to perform
community service. The court noted that not all community service
requires physical exertion—observing, for example, that Banks
could have accrued service hours by sitting in court, watching
proceedings.

    Banks has not challenged the court’s factual finding, and the
majority takes no issue with it either. So this appeal does not turn
on whether Banks could have done community service; we all
accept that she could have. The real question—the one on which
the majority and I disagree—is whether her choice to eschew

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community service even matters. And that turns on how we
interpret the probation order.

     The probation order says Banks “will pay” court costs. But it
also says she “may perform [community service hours] in lieu of
court costs.” The majority seizes on the distinction between “will
pay” and “may perform” to conclude that the former was
mandatory and the latter was permissive. And it is true that “will”
or “shall” is generally mandatory and “may” is generally
permissive. See Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla.
2002). But we cannot ignore the context. Cf. Comcoa, Inc. v. Coe,
587 So. 2d 474, 477 (Fla. 3d DCA 1991) (“[A]ccording to the context
and surrounding circumstances, a statutory ‘shall’ is to be read as
‘may’ and vice versa.”); Lomelo v. Mayo, 204 So. 2d 550, 552 (Fla.
1st DCA 1967) (similar); cf. also RLS Assocs., LLC v. United Bank
of Kuwait PLC, 380 F.3d 704, 710 (2d Cir. 2004) (“[T]o appreciate
whether [a provision] was intended to create a mandatory
obligation, as opposed to a discretionary option, a court must read
the relevant terms of a provision in full and in context, rather than
simply assume that the selection of a particular word was intended
to denote the significance lawyers normally intend by its use.”).
And the context makes clear that Banks did not have to pay; she
had two independent means of satisfying the relevant probation
condition.

    Everyone agrees that Banks could have satisfied the condition
through community service. Had she performed sufficient
community service, nobody could credibly argue that she
nonetheless violated by not also paying costs—even though the
provision said she “will pay” costs. She never had to pay. What she
had to do was satisfy the probation condition, which she may have
done by paying costs—or which she may have done though
community service. She could choose either, but she could not
choose neither.

     The majority takes issue with this, saying the court could have
worded the order differently. And surely, the court could have said
“you must pay and if you don’t you must do community service.”
Or it could have said “you must either pay or do community
service.” But there is no logical difference between saying on one
hand, that someone “shall” do A but nonetheless “may” do B

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instead of A—and on the other hand saying someone “shall” do
either A or B. Either way, the person does not have to do A; he may
do B instead. It is not that A is mandatory and B is optional.

     Suppose a tax law said tax returns “shall be filed on or before
the 15th day of April following the close of the calendar year.” 26
U.S.C. § 6072(a) (emphasis added). And suppose another provision
said taxpayers “may” obtain from the Secretary of the Treasury “a
reasonable extension of time for filing any return.” 26 U.S.C.
§ 6081(a) (emphasis added). Would we say that because “shall” is
mandatory and “may” is permissive, all taxpayers must file by
April 15, whether they secure an extension or not? We shouldn’t.
Instead, we should read the provisions together and understand
that taxpayers may avoid the April 15 deadline by opting for an
extension, even though opting for an extension is not mandatory.
Although the text says returns “shall be filed” by April 15, it is
clear taxpayers don’t have to file by April 15 if they secure an
optional extension. It would be no different if the text said
taxpayers “shall either file by April 15 or obtain an extension.” It
is the same thing.

     We therefore ought not focus on whether Banks had the
ability to pay, but rather on whether Banks had the ability to
satisfy the relevant condition. Indeed, the whole point of requiring
an ability to pay before punishing for nonpayment is based on
constitutional limitations. “The Equal Protection and Due Process
Clauses of the United States Constitution ensure that an indigent
probationer is not incarcerated based solely upon inability to pay
a monetary obligation.” Del Valle v. State, 80 So. 3d 999, 1005 (Fla.
2011). But when a probationer can satisfy a condition by paying
costs or without paying costs (like Banks could), we never face a
situation where someone is jailed “based solely upon inability to
pay a monetary obligation.” Id.

      Once we accept—as the majority and I have—that (i) Banks
could have satisfied the probation condition through community
service, (ii) that she had the ability to do community service, and
(iii) that she nonetheless chose to not do community service, it
inescapably follows that the trial court was justified in finding a
willful violation. Neither Banks’s financial resources nor the
wording of the probation order changes any of this. Nevertheless,

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the majority reverses because the probation order said
(essentially) “you must do A, but you may do B instead of A,” rather
than saying “you must do either A or B.”

    We should affirm.

                _____________________________

Andy Thomas, Public Defender, and Lori A. Willner, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, Sharon S. Traxler, Assistant
Attorney General, and Amanda Stokes, Assistant Attorney
General, Tallahassee, for Appellee.




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