DONALD DUANE FLETCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Duane Fletcher appealed his aggravated assault conviction and challenged the sentencing imposed by the trial court. The appellate court affirmed his convictions but reversed and remanded portions of the sentence, finding that the trial court erred in imposing a general sentence for multiple offenses and improperly delegating restitution determination to a probation officer.
The appellate court affirmed Fletcher's convictions for aggravated assault but reversed the general sentence imposed for the two nolo contendere offenses and the restitution requirement as determined by the probation officer. The court held that separate sentences must be imposed for each of the two offenses, and that any restitution determination must be made by the court after providing Fletcher an opportunity to be heard on the amount and his ability to pay.
[1] A general sentence imposed for multiple offenses is improper when the offenses are distinct and require separate sentencing.
[2] A court unlawfully delegates judicial responsibility when it orders restitution to be determined by a probation supervisor.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“he correctly points out that the court erred in imposing a general sentence on him for separate convictions of leaving the scene of an accident and for failure to give his name, address and vehicle registration number”
Establishes that separate sentences, not a general sentence, must be imposed for multiple distinct offenses.
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Join FLexlaw to unlock all legal intelligenceFletcher was charged with aggravated assault, leaving the scene of an accident, and failing to provide his name, address, and vehicle registration num…
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SCHEB, Chief Judge.
Donald Duane Fletcher challenges the evidentiary basis of his conviction for aggravated assault. Additionally, he contends that the court erred in imposing a general sentence in respect to two other offenses and in requiring restitution as a condition of probation.
The state filed an information charging Fletcher with aggravated assault and with separate counts of leaving the scene of an accident and failing to give his name, address and vehicle registration number at an accident which resulted in injury. He pled not guilty to the assault count and nolo contendere to the other two charges. The jury found him guilty of aggravated assault, and the court sentenced him to five years imprisonment to be suspended after one year, followed by four years probation for that offense. In addition, the court imposed a general sentence of one year for the two offenses to which he pled nolo contendere. The sentences imposed were to run concurrently. The court also required Fletcher “to make restitution as determined by his probation supervisor.”
We have examined the record and find no merit to appellant’s contention that his conviction for aggravated assault was not supported by the evidence. We do, however, find that the court erred in respect to the sentence imposed. While it was not error to adjudicate Fletcher guilty of the two offenses to which he pled nolo contendere, State v. Moss, 206 So. 2d 692 (Fla. 2d DCA 1968), he correctly points out that the court erred in imposing a general sentence on him for separate convictions of leaving the scene of an accident and for failure to give his name, address and vehicle registration number. Dorfman v. State, 351 So. 2d 954 (Fla. 1977).
Moreover, the order requiring Fletcher “to make restitution as determined by his probation supervisor” is also improper in that it unlawfully delegates a judicial responsibility to a nonjudicial officer. Kroenke v. State, 366 So. 2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 99 (Fla. 1979); McClure v. State, 371 So. 2d 196 (Fla. 2d DCA 1979). By delegating such authority to a probation officer, the court did not afford Fletcher an opportunity to be heard on the amount of damages caused by his criminal conduct and the reasonableness of the amount of restitution in light of his ability to pay. Fresneda v. State, 347 So. 2d 1021 (Fla. 1977); Reeves v. State, 372 So. 2d 1016 (Fla. 2d DCA 1979); Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981).
We also note that since the trial court sentenced Fletcher, the Supreme Court of Florida has decided Villery v. State, 396 So. 2d 1107 (Fla. 1980).1 Villery holds that a probationer who has been placed on probation with a period of incarceration of one year or more is entitled, on application to the trial court, to have the sentence corrected. The court held that Villery applies retroactively and encompasses the so-called split sentence where incarceration is followed by a period of probation as well as where incarceration is made a condition of probation. Id., at 1111.
Accordingly, we affirm appellant’s convictions. However, we vacate the general sentence imposed by the court for leaving the scene of an accident and failing to furnish name, address, and vehicle registration number, as well as the requirement that Fletcher make restitution as determined by his probation officer. On remand the trial court shall impose a separate sentence for each of the two offenses to which appellant pled nolo contendere. Further, the trial court may consider imposing restitution consistent with the requirements outlined in this opinion. Finally, on remand the appellant may, at his option, make application to the trial court to conform his basic sentence to the requirements of Vil-lery. The appellant shall be entitled to be present at the resentencing.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.
HOBSON and OTT, JJ., concur. . For our comments on the application oí the principles of Villery, see Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981), and Coffey v. State, 403 So. 2d 1152 (Fla. 2d DCA 1981).
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Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)…ount 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). The state contends that the defendant’s complaints regarding this aspect of the restitution order are premature and…
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J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985)…DCA 1981), our sister court held it was reversible error for the trial court to delegate a judicial duty to a juvenile’s counselor i.e. determining the amount and manner of restitution. This court also recognized that principle in Fletcher v. State, 405 So. 2d 748 (Fla. 2d DCA 1981), in which we held it was reversible error for the trial court to delegate a judicial responsibility to a probation supervisor. Consequently, that portion of the lower court’s order must be reversed. The State, in its brief, conced…
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Buchanan v. State, 483 So. 2d 537 (Fla. 2d DCA 1986)…on in an amount to be determined by appellant’s probation officer is listed as a condition of probation. The determination of the amount of restitution is a judicial responsibility which cannot be delegated to a probation officer. Fletcher v. State, 405 So. 2d 748 (Fla. 2d DCA 1981). Accordingly, we remand the cases cited above with directions to the trial court to delete those portions of the probation orders stating that restitution shall be determined by the probation officer. CAMPBELL, A.C.J., and FRA…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981)
- DeWITT v. Rollin W. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978)
- McCLURE v. State, 371 So. 2d 196 (Fla. 2d DCA 1979)
- State v. Moss, 206 So. 2d 692 (Fla. 2d DCA 1968)
- Reeves v. State, 372 So. 2d 1016 (Fla. 2d DCA 1979)
- Coffey v. State, 403 So. 2d 1152 (Fla. 2d DCA 1981)