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EWELL v. STATE

No. 5D02-3067.

852 So.2d 436 (2003)

Joan EWELL, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

August 22, 2003.

Attorney(s) appearing for the Case

James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Joan Ewell appeals her judgment and sentence for violation of probation. We reject her argument that the trial court abused its discretion in finding that she had the ability to pay restitution and willfully failed to do so. We do find, however, that the trial court's upward departure sentence is not supported by substantial competent evidence. Accordingly, we affirm the judgment but reverse the sentence and remand...

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