HENRY JAMES TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction and prison sentence but vacated restitution imposed without notice, opportunity to be heard, or compliance with statutory ability-to-pay requirements.
A trial court must provide notice and opportunity to be heard before imposing restitution, must apportion damages among multiple defendants, and must comply with statutory requirements to assess ability to pay.
[1] Restitution cannot be imposed without notice to the defendant and opportunity to be heard, and must be apportioned among multiple defendants based on their individual cul…
[2] Trial courts must comply with statutory requirements to determine a defendant's ability to pay restitution, financial resources, and the burden payment would impose befor…
Previewing 2 of 2 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“the court never raised the possibility of restitution during the plea negotiations, and neither the judge nor the prosecutor gave appellant notice and opportunity to be heard upon the issue”
Explaining the trial court's procedural error in imposing restitution without notice or hearing
Turner pleaded guilty after a plea conference where the trial judge forecasted a specific sentence. At sentencing, the judge imposed restitution in ad…
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DELL, Judge.
Henry James Turner appeals from a judgment of conviction and sentence thereon. He contends the trial court erred by denying his motion to withdraw his guilty plea made when the trial judge imposed restitution in addition to the sentence which the trial judge forecast during a plea conference.
The record demonstrates that the length of sentence coincided with the discussions before the court. However, the court never raised the possibility of restitution during the plea negotiations, and neither the judge nor the prosecutor gave appellant notice and opportunity to be heard upon the issue. Reeves v. State, 372 So. 2d 1016 (Fla. 2d DCA 1979). Further, the trial judge imposed restitution on appellant alone for the full amount of the victim’s claimed damages, despite the fact that four defendants perpetrated the crimes. The State did not show what portion of the victim’s damages arose from appellant’s acts, rather than those of his codefendants. See Fresneda v. State, 347 So. 2d 1021 (Fla.1977). Finally, the trial judge did not comply with Section 775.089, Florida Statutes (1981) in that he did not determine appellant’s ability to pay, his financial resources or the burden that payment would impose upon him.
Accordingly, we affirm appellant’s conviction and the prison sentence, and remand with directions to strike that part of the sentence which imposes restitution.
CONVICTION AFFIRMED; SENTENCE VACATED IN PART.
HURLEY and WALDEN, JJ., concur.
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Citator
Cited By
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Spivey v. State, 531 So. 2d 965 (Fla. 1988)…EHRLICH, Chief Justice. We have for review Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987), because of conflict with Turner v. State, 431 So. 2d 1017 (Fla. 4th DCA), cause dismissed, 436 So. 2d 101 (Fla.1983). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the decision below. Petitioner Spivey pled guilty to the charge of armed robbery. § 812.13(2)(a), Fla.St…
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Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987)…appellant to object in the court below to the order of restitution or to attempt to reduce the amount of restitution by citing his financial circumstances, did not meet the burden the statute places upon him. Appellant, relying on Turner v. State, 431 So. 2d 1017 (Fla. 4th DCA 1983), also argues that the total amount of restitution due the victim of the crime should have been apportioned between appellant and the coperpetrator of the armed robbery. Neither the present version of section 775.089 or its predec…
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Dolan v. State, 468 So. 2d 442 (Fla. 2d DCA 1985)…(1981), is stricken since the trial court failed to consider the appellant’s ability to [*443] pay, his financial resources, or the burden that payment would impose upon him. See Harris v. State, 452 So. 2d 1041 (Fla. 2d DCA 1984); Turner v. State, 431 So. 2d 1017 (Fla. 4th DCA 1983). Subject to the notice requirements of Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981), the court may reimpose restitution pursuant to the mandates of the statute. GRIMES, A.C.J., and SCHEB and FRANK, JJ., concur.…
Previewing 3 of 6 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)
- Reeves v. State, 372 So. 2d 1016 (Fla. 2d DCA 1979)