JOSEPH WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Wilson appeals the revocation of his probation for failure to make restitution to his grand theft victim. The court affirms the revocation, holding that although the trial court should have specified the restitution amount at sentencing, Wilson's failure to object at that time and his subsequent minimal payment efforts precluded him from raising this issue on appeal for probation revocation.
The court affirmed the probation revocation. Although the trial court should have specified the restitution amount at sentencing, Wilson's failure to object to the restitution condition at the time it was imposed, his implicit concession to its propriety by making one payment, and his presentation of no evidence of objection during the revocation hearing precluded him from raising this defect on appeal. The court's findings that Wilson was employed and financially able to make payments but failed to do so were supported by competent substantial evidence.
[1] A defendant waives the right to contest a restitution condition of probation by failing to object to it at the time it is imposed.
[2] A defendant's failure to object to a restitution condition at the time of sentencing implicitly concedes the propriety of the condition and the amount of restitution.
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Join FLexlaw to unlock all legal intelligence“The law requires that a defendant shall be given notice of a proposed restitution order and allowed to be heard as to the amount of damages or loss caused by his offense.”
Establishes the legal requirement for restitution procedures, citing Fresneda v. State
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Join FLexlaw to unlock all legal intelligenceWilson pleaded guilty to grand theft and was placed on two-year probation in September 1978 with a condition requiring full restitution to the victim.…
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WENTWORTH, Judge.
Appellant Joseph Wilson challenges the propriety of an order revoking his probation for failure to make restitution to the victim of his crime. He asserts that he was unable to make payments due to insolvency and the court did not expressly find to the contrary and did not previously set the amount of restitution due.1 We affirm.
Appellant entered a plea of guilty to a charge of grand theft. In September 1978, the lower court placed him on probation for two years contingent upon his compliance with 10 conditions, one of which required him to make full restitution to the victim of his crime. The court did not set the amount of restitution due. The appellant made no objection to any of the conditions or their content. His probation officer then determined that he would be responsible for making restitution in the amount of $329.26.
The record indicates that the appellant was employed during 1979 and up until May 16, 1980. Thereafter he was apparently unemployed. During the entire probation period he made one $10 payment toward restitution. His probation officer advised him that he would have to make efforts to fulfill the conditions of his probation. Upon appellant’s continuing failure to do so, his probation officer sought revocation of probation and an order of revocation was entered.
The law requires that a defendant shall be given notice of a proposed restitution order and allowed to be heard as to the amount of damages or loss caused by his offense. Fresneda v. State, 347 So. 2d 1021, 1022 (Fla.1977). The defendant may be notified prior to the sentencing hearing that restitution is a possibility and allowed to be heard at the hearing, or the issue of restitu tion as a probation condition may be raised by the judge at the sentencing hearing. If the defendant contests the proposed restitution condition at that time, he is entitled to continuance of the hearing for a reasonable time in order to allow adequate preparation to be heard on the issue. Goodson v. State, 400 So. 2d 791, 793 (Fla. 2d DCA 1981).
Although appellant did not object to the conditions imposed, he now asserts the absence of judicial prescription of amount of restitution in defense against his probation revocation for violation of that condition. Decisions cited are those which reverse an order imposing a probationary condition of restitution without setting the amount, and remand so that the amount of restitution can be properly set. Hamm v. State, 403 So. 2d 1155 (Fla. 1st 1981); Buford v. State, 376 So. 2d 479 (Fla. 1st DCA 1979). Those cases, however, obviously involve direct and timely appeals from a trial court order setting the conditions of probation.
While the court in this case should have specified the amount of restitution due, it is clear that appellant made no objection to the condition of restitution at the time it was set by way of the procedures set forth in Fresneda and Goodson. Additionally we note that he made one payment toward restitution, and presents no evidence that he ever objected on the point in question to his probation officer or during the probation revocation hearing. His concession to the propriety of the condition and the amount of restitution is implicit. Appellant has failed to demonstrate any prejudice.
At the probation hearing the court determined that appellant was employed from 1979 until May 15, 1980; that he was financially able to make restitution payments during that period; and that he failed to do so. Upon consideration of those findings, which are supported by competent substantial evidence, we affirm. I.P.J. v. State, 402 So. 2d 1373 (Fla. 1st DCA 1981); Coxon v. State, 365 So. 2d 1067, 1068 (Fla. 2d DCA 1979).
ERVIN and JOANOS, JJ., concur. . While appellant complains that his probation was improperly revoked due to a violation of other conditions, we find no evidence to support these allegations.
Cases With Similar Vibessemantic neighbors from the corpus
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Jordan v. State, 610 So. 2d 616 (Fla. 1st DCA 1992)…WOLF, Judge, specially concurring. On initial evaluation, it would appear that the opinions of the court in this case and in White v. State, 606 So. 2d 1271 (Fla.1992), conflict with the opinion in Wilson v. State, 407 So. 2d 1078 (Fla. 1st DCA 1982). Wilson holds that at the time of revocation, a defendant may not for the first time challenge the validity of a condition of probation which delegated responsibility to a probation officer to determine the amount of restitution…
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Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)…sistent with sections 775.089(1)(a) & (6) and 948.03(1), Florida Statutes (1989). See Holland v. State, 485 So. 2d 471 (1st DCA 1986), pet. for rev. den., 508 So. 2d 5 (Fla.1987); Laster v. State, 587 So. 2d 674 (Fla. 1st DCA 1991); Wilson v. State, 407 So. 2d 1078 (Fla. 1st DCA 1982). In seeking a HFO classification pri- or to appellant’s sentencing for the 1990 offenses in Cases No. 90-4770, 90-4771, 90-4976, 90-4820 and 90-4821, the state relied on the two prior felony convictions of October 5, 1989 and Oc…
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Bush Wade Holland v. State, 485 So. 2d 471 (Fla. 1st DCA 1986)…jects or otherwise contests the proposed restitution, the trial judge must continue the hearing for a reasonable time and allow the defendant to be heard on the restitution issue. Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981), Wilson v. State, 407 So. 2d 1078 (Fla. 1st DCA 1982). The record on appeal indicates that restitution was raised at the sentencing hearing, but that the defendant did not object to or contest the proposed restitution amount in any manner. Thus, reversal on this point is not require…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981)
- Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981)
- Buford v. State, 376 So. 2d 479 (Fla. 1st DCA 1979)
- I. P. J. v. State, 402 So. 2d 1373 (Fla. 1st DCA 1981)