JAMES T. HAMM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Hamm appeals his probation order, challenging the trial court's imposition of restitution without proper notice or hearing. The court agrees and reverses, holding that defendants must receive notice of proposed restitution and an opportunity to be heard on the amount of damages before such a condition is imposed.
A trial court may not impose restitution as a probation condition without providing the defendant with adequate notice and an opportunity to be heard on the amount of damages. The trial court, not the Probation and Parole Commission, must determine the amount of restitution. Additionally, restitution may not exceed the amount of damage caused by the criminal conduct of which the defendant was convicted.
[1] A defendant must be given notice of proposed restitution and an opportunity to be heard on the amount of damage or loss.
[2] A trial court may not delegate the determination of the amount of restitution to a probation commission.
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Join FLexlaw to unlock all legal intelligence“notice of the proposed restitution must be provided a defendant and an opportunity afforded him to be heard on the amount of damage or loss”
Establishes the procedural requirement that defendants must receive notice and a hearing opportunity before restitution is imposed as a probation condition
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Join FLexlaw to unlock all legal intelligenceHamm was charged with stealing a shotgun and dealing in stolen property. A victim's house was damaged by shotgun blasts, and jewelry was also stolen f…
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THOMPSON, Judge.
The appellant challenges the validity of his probation Orders, contending that the trial court improperly set forth the terms of the restitution that is to be made by the appellant. We agree and reverse.
The appellant was charged with stealing a shotgun and dealing in stolen property (i.e., another shotgun). At the time these crimes occurred, the victim’s house was sub stantially damaged by shotgun blasts. The victim told an investigating officer that the appellant caused this damage. Additionally, the victim told the officer that before this shooting incident took place, certain jewelry had been stolen from her house, and she suspected that the appellant was responsible for this earlier incident.
The appellant pled guilty to the crimes charged, and a sentencing hearing was scheduled. At that hearing, the trial court placed the appellant on probation, with a condition that he provide full restitution to the victim, who was to furnish an estimate of her damages to the Probation and Parole Commission (“the Commission”). The appellant’s counsel timely objected on several grounds to this condition being imposed. Counsel also requested a hearing on the issue of restitution. The objection was overruled and the request was denied. The Commission later determined that the amount of restitution should include sums for damages to the victim’s house as well as for the stolen jewelry.
In Blincoe v. State, 371 So. 2d 595 (Fla. 1st DCA 1979), this court addressed a situation similar to the one at bar. In Blincoe, as a condition of probation, restitution was ordered when the appellant was sentenced, without any prior notice that restitution was to be considered. We stated that “notice of the proposed restitution must be provided a defendant and an opportunity afforded him to be heard on the amount of damage or loss.” Id. at 596. This procedure 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.1977). The appellant was never charged with nor convicted of stealing the jewelry or causing the damage to the victim’s house.
The Orders appealed from are reversed insofar as restitution was made a condition of probation. This cause is remanded with directions to provide the appellant with adequate notice of any proposed restitution, and to afford him an opportunity to be heard on the amount of damages. Such a hearing should be conducted in compliance with this opinion.
ERVIN and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)…0 (Fla. 1st DCA 1981); Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). However, just as the determination of the amount of restitution is a non-delegable judicial responsibility, see Fresneda v. State, 347 So. 2d 1021 (Fla.1977); Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981), so also is the determination of the defendant’s ability to pay. Fletcher v. State, 405 So. 2d 748 (Fla. 2nd DCA 1981); Reeves v. State, 372 So. 2d 1016 (Fla. 2nd DCA 1979); cf. Haynes v. State, 441 So. 2d 661 (Fla. 1st DCA 1983)…
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Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)…v-ered items were caused directly or indirectly by appellant’s offense — grand theft. See Denson v. State, 556 So. 2d 823 (Fla. 1st DCA), review dismissed, 562 So. 2d 347 (Fla.1990); Moton v. State, 554 So. 2d 657 (Fla. 1st DCA 1989); Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981). Finally, when one considers the actual crime charged (grand theft) and the lapse of time between appellant’s arrest and the burglary (approximately six months), it cannot be said that there was a significant relationship betwee…
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James v. State, 499 So. 2d 24 (Fla. 1st DCA 1986)…ring to establish the amount and to amend the order accordingly. See Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986); J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985); Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984); and Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981). SMITH, THOMPSON and WIGGINTON, JJ., concur.…
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
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- McCLURE v. State, 371 So. 2d 196 (Fla. 2d DCA 1979)
- Tapper v. Taunton, 371 So. 2d 595 (Fla. 1st DCA 1979)
- Blincoe v. State, 371 So. 2d 595 (Fla. 1st DCA 1979)