MAE M. WOMBLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that restitution as a condition of probation requires notice and an opportunity to be heard, absent waiver or estoppel.
Appellant was found guilty of welfare fraud and sentenced to probation with restitution. The amount of restitution ordered by the judge was not fully …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Restitution As Condition Of Probation cases and more on FLexlaw
OTT, Judge.
A jury found appellant guilty of welfare fraud. At the sentencing hearing the trial judge imposed restitution as one of the conditions of probation. We find that restitution was imposed in violation of the notice and opportunity to be heard requirements of Fresneda v. State, 347 So. 2d 1021 (Fla.1977) and this court’s decisions in DiOrio v. State, 359 So. 2d 45 (Fla. 2d DCA 1978) and Latti v. State, 364 So. 2d 828 (Fla. 2d DCA 1978). See, also Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1979). We hold that in the absence of record consent, waiver or estoppel the trial judge should afford the parties reasonable notice and opportunity to be heard on the imposition of restitution as a condition of probation. Evidence may very well be appropriate as to whether or not it is a proper condition (such as whether there was financial loss “caused by the offense”), the amount of the loss and the financial ability of the offender. In the present case the fact of financial loss was established by the jury verdict. However, the testimony at the trial as to the amount of the resulting welfare overpayment ranged from $237.00 to I578.00.1 Appellant was entitled to an opportunity to be heard on the subject.
The judgment of conviction is affirmed but the sentence is set aside and the case remanded for resentencing consistent with this opinion.
GRIMES, C. J., and STRICKLAND, J. TIM, Associate Judge, concur. . The judge’s condition required restitution in the amount of $598.00; the maximum of $578.00 testified to at trial plus a $20.00 medicare overpayment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- DeWITT v. Rollin W. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978)
- DiORIO v. State, 359 So. 2d 45 (Fla. 2d DCA 1978)
- Latti v. State, 364 So. 2d 828 (Fla. 2d DCA 1978)