Is it a Crime to be Broke? Fighting VOPs for “Inability to Pay” in Orlando

By: John Guidry

Money comes, and money goes. We all have important bills to pay. Here in Orlando, times are tough for many folks. This is especially true of those on probation. It can be hard enough to get by in life, but add to that the conditions of probation—and how much money it costs to complete those conditions—and you’ve got a recipe for a train wreck.

No probationer has it worse than those on sex offender probation. The conditions are too vast to list here, but it’s fair to say it is not cheap. GPS monitoring, specialized counseling, and polygraphs all come out of the probationer’s pocket. When you’re struggling to keep the lights on, these court-ordered costs can feel like an impossible mountain to climb.

Facing a Violation of Probation because you can’t afford your costs or counseling? Being poor is not a crime. Call John Guidry today at (407) 423-1117 to discuss your defense.

The Legal Breakdown: The Washington and Del Valle Standards

To understand why “inability to pay” is a powerful defense, we look at the case of Washington v. State, 2011 WL 1760432 (Fla. 1st DCA 2011). Washington was on probation for a sex offense and was violated for failing to maintain his GPS device and attend counseling.

• The Facts: Washington couldn’t pay his utility bill, so his GPS device couldn’t be plugged in. He also couldn’t afford his mandatory counseling. He testified that he tried to find a job, but—surprise, surprise—no one wanted to hire someone with his conviction record.
• The Ruling: The trial court originally found he willfully violated his probation. But the appellate court overturned that “insane” decision. They held that because Washington made a “good faith effort” to find work and simply didn’t have the money, the violation was not willful.

This principle was cemented by the Florida Supreme Court in Del Valle v. State, 80 So. 3d 999 (Fla. 2011). The court ruled that before a judge can send you to prison for failing to pay, they MUST inquire into your ability to pay and make an explicit finding of willfulness. As of 2025, cases like Aribu v. State (Fla. 2d DCA 2025) continue to hammer this home: if the judge doesn’t specifically ask about your finances, revoking your probation is a fundamental error.

John’s Takeaways

• Willfulness is Everything: Under Florida Statute § 948.06, a violation must be “willful and substantial.” If you are broke despite making “bona fide efforts” to find work, your failure to pay is not willful.
• The Burden of Proof: Initially, the State must show you didn’t pay. Once they do, the burden shifts to you to prove you couldn’t pay. This requires sworn testimony and documentation of your job searches or financial status.
• The “Lifestyle” Trap: Beware—judges will look at your spending. If you have $100 for a concert ticket or a new tattoo but didn’t pay your restitution, the judge will find your violation “willful” in a heartbeat.
• Alternate Measures: If you truly cannot pay, the law requires the court to consider “alternate measures” like community service or a civil judgment, rather than just throwing you in a cell.
• Regional Reality: Whether you are in Orange, Seminole, or Osceola County, some judges are “VOP hawks.” You need a lawyer who can present your financial “war story” in a way that forces the court to follow the Del Valle standard.

The justice system is harsh, and it is “sad but true” that many people are violated simply because they hit a rough patch financially. This is America—not being able to afford something should not result in a prison sentence.

I have been defending the citizens of Central Florida against these “debtor’s prison” tactics since 1993. If your probation officer is trying to violate you for being broke, give me a call. Let’s show the court that you’re making a good faith effort and that your poverty is not a crime.

Facing a VOP? Call John at (407) 423-1117.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.