LYNN M. MCCLURE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lynn McClure was placed on probation for grand larceny with a condition that she make restitution to her former employer. The trial court's written probation order improperly delegated to the Probation and Parole Commission the authority to determine the restitution amount, a responsibility exclusively reserved to the court. The appellate court remanded for correction of the order to conform to the trial judge's oral pronouncement that the amount would be determined by the civil court.
The trial court unlawfully delegated the authority to determine restitution amount to the Probation and Parole Commission, a duty that is exclusively that of the court. The written probation order must be corrected to conform to the trial judge's oral pronouncement that the amount would be judicially determined (through the civil court) and that only the schedule of repayment would be prescribed by the probation officer.
[1] A trial court commits error by ordering restitution in an amount to be determined by a probation officer, as this constitutes an unlawful delegation of judicial responsib…
[2] A trial court's order directing a defendant to make restitution as directed by a probation officer is reversible error.
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Join FLexlaw to unlock all legal intelligence“This, of course, would be an unlawful delegation of a responsibility which is exclusively that of the court.”
Establishes that determining restitution amount is an exclusive judicial duty that cannot be delegated to the Probation and Parole Commission
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Join FLexlaw to unlock all legal intelligenceMcClure pleaded no contest to four counts of grand larceny for stealing money from her employer, C. A. Atherton Oil Company. At sentencing, her attorn…
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DANAHY, Judge.
Lynn M. McClure appeals a term of probation imposed upon her following a finding of guilty to four counts of grand larceny. She argues that in the order of probation the trial judge improperly delegated the duty of determining the amount of restitution to the Probation and Parole Commission. We agree and remand for correction of the order of probation.
Mrs. McClure was charged with stealing money from her employer, C. A. Atherton Oil Company. She pleaded no contest to the charges. Thereafter, a sentencing hearing took place at which Mrs. McClure’s attorney argued that his client should be placed on probation, pointing out that nothing would be gained in placing a 48-year old woman in prison and that the likelihood of future criminal activity was slight. Additionally, he made this statement:
As to Atherton Oil Company’s lost funds as a result of her actions, there is current ly civil litigation in process to ascertain the amounts therein, and to seek reimbursement of that.
The court was persuaded by this argument and gave Mrs. McClure the choice of a sentence of three years in prison (the maximum sentence was twenty years) or of ten years probation with the condition that:
You will make restitution on a schedule prescribed by your probation officer in the amount as determined by the civil court, when it is determined by the civil court.
Mrs. McClure chose probation. However, the written probation order provided that Mrs. McClure as a condition of probation: “Make full restitution as determined by probation . . . ”
Mrs. McClure appeals, contending that the court unlawfully delegated determination as to the amount of restitution to the Probation and Parole Commission. The probation order could be interpreted to mean that the Probation and Parole Commission or a probation officer was to determine the amount to be repaid, as well as the schedule of repayment. This, of course, would be an unlawful delegation of a responsibility which is exclusively that of the court. Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1978). The written order of probation should therefore be corrected to conform to the judge’s oral statements at the hearing.
On the facts of this case it is unnecessary to decide the propriety of predicating the amount of restitution to be paid upon a future judicial determination. Appellant suggested this method to the court and she made no objection to the court then using it to set the amount of restitution. She is the party defendant to the civil action and will have an opportunity to be fully heard in court as to the amount of loss she caused to C. A. Atherton Oil Company. If there was error in the method of determining the amount of restitution, she led the court to it and waived her right to now change her position and raise it here as error. Cf. Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977); Spadaro v. State, 332 So. 2d 110 (Fla. 1st DCA 1976); McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971).
Accordingly, the cause is remanded for the purpose of correcting the order to conform to the oral statements of the court made upon imposing probation; i. e., to provide that the Probation and Parole Commission prescribe only the schedule of repayment of the amount which is judicially determined.
Reversed and remanded for correction of the order. HOBSON, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (12 total)
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E. Y. v. State, 390 So. 2d 776 (Fla. 3d DCA 1980)…ed, a defendant must be given notice of the proposed restitution order as well as an opportunity to be heard as to the amount. Additionally, the authority to determine the amount cannot be delegated to the probationer’s supervisor. McClure v, State, 371 So. 2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 99 (Fla.1979). For the foregoing reasons, the appellant’s adjudication of delinquency is affirmed; the order delegating judicial authority to the juven…
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Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981)…ure was not followed in this case, and reversal is required. We also note that the trial court improperly requested the commission to determine the amount of restitution due. This determination must be made by the trial court. See McClure v. State, 371 So. 2d 196, 197 (Fla.2d DCA 1979). Lastly, in determining the amount of restitution to be paid, the trial court may not “require payment in excess of the amount of damage the criminal conduct caused the victim.” Fresneda v. State, 347 So. 2d 1021, 1022 (Fla.19…
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Carnegie v. State, 473 So. 2d 782 (Fla. 2d DCA 1985)…with the court’s order. It is the only statement of reasons for departure in the record. We find that the trial court improperly delegated to the state attorney’s office a responsibility which belongs exclusively to the court. See McClure v. State, 371 So. 2d 196 (Fla.2d DCA 1979). Although oral reasons for departure, subsequently transcribed and made part of the record, are sufficient to meet the requirements of Florida Rule of Criminal Procedure 3.701(d)(11), see Smith v. State, 454 So. 2d 90 (Fla. 2d DCA…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- DeWITT v. Rollin W. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978)
- Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977)
- Fred v. Spadaro, 332 So. 2d 110 (Fla. 1st DCA 1976)