JOYCE DENT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joyce Dent appealed a restitution order requiring her to repay $1,143.42 for unauthorized credit card charges, arguing the amount exceeded what she was charged with obtaining. The court affirmed, finding that full restitution for all losses was a condition of her plea bargain agreement.
The court affirmed the restitution order, holding that where a defendant agrees as part of a plea bargain to make full restitution for all losses occasioned by unauthorized activity, the court may require such restitution even if it exceeds the amount charged in the criminal complaint.
[1] A defendant may appeal the denial of a motion to dismiss after entering a nolo contendere plea if the denial is dispositive of the case.
[2] Intent and knowledge are generally not proper issues to be decided on a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“the plea bargain agreement required repayment of all losses occasioned by Dent's unauthorized use of the card, not simply the amount for which criminal charges were filed”
Establishes the state's argument and the basis for upholding the restitution order
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Join FLexlaw to unlock all legal intelligenceDent pleaded nolo contendere to forgery in a credit card transaction pursuant to a plea bargain and received three years probation with restitution. T…
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HERSEY, Judge.
Appellant Joyce Dent changed her plea, pursuant to a plea bargain, from not guilty to nolo contendere on a charge of forgery in a credit card transaction. She was given three years probation subject to the condition that she make restitution for unlawful use of the card in an amount to be initially determined by probation personnel subject to hearing and approval by the court. On four occasions the matter came before the court, which ultimately set the amount of restitution at $1,143.42.
Relying on Fresneda v. State, 347 So. 2d 1021 (Fla.1977), and Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981), among other cases, Dent appeals on the basis that the amount she has been ordered to repay bears no relationship to the amount she was convicted of obtaining by use of the credit card. Her allegation is clearly borne out by the record. In the absence of other circumstances the case would be a reversal.
However, the state contends that the plea bargain agreement required repayment of all losses occasioned by Dent’s unauthorized use of the card, not simply the amount for which criminal charges were filed. If this were so, then the case would fall within our dictum in Crowder v. State, 334 So. 2d 819, 820 (Fla. 4th DCA 1976), cert. denied, 342 So. 2d 1101 (Fla.1977):
We believe that this provision, which allows a court to require a defendant, as a condition of his probation, to make restitution to the aggrieved party in a particular case, would not authorize the court to require the defendant to make restitution in other unrelated cases for which the defendant has not been convicted. (This would not prevent the court from including such conditions in a probation order where the defendant, as part of a plea bargain, acknowledges his responsi bility for the other offenses and agrees to make restitution.)
and would activate the rationale of similar cases like G.H. v. State, 414 So. 2d 1135 (Fla. 1st DCA 1982).
The issue is whether full restitution was a condition of the plea bargain. The collateral issue of whether Dent was sufficiently heard on the amount of restitution is put to rest, at least in our view, by the fact that this matter came before the court on no less than four occasions during 1982. The record is clear that Dent had ample opportunity to contest the amount ultimately established by the trial court as appropriate restitution. On no occasion did she offer or attempt to offer any evidence on the propriety of individual amounts alleged to have been charged by unauthorized use of the credit card.
On the main issue, the record of the hearing on January 25, 1980, shows that the trial court clearly and explicitly indicated that restitution would include all credit card charges arising from Dent’s unauthorized activities and neither Dent nor her attorney voiced objection to the court’s stated intention. The reasonable inference to be drawn from that and other occurrences reflected in the transcripts is that Dent agreed as part of her plea bargain to make full restitution as represented by the order from which this appeal is taken. In any event appellant has failed to carry her burden of demonstrating reversible error by offering some indication that such was not the case. For that reason we affirm.
AFFIRMED.
BERANEK and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)…drop criminal mischief charge).3 See also Hebert v. State, 614 So. 2d 493 (Fla.1993) (holding defendant waived right to raise objection to amount of restitution where plea agreement expressly left amount to trial court’s discretion); Dent v. State, 432 So. 2d 163 (Fla.4th DCA 1983) (where full restitution was condition of defendant’s plea bargain, defendant could not challenge restitution condition on grounds that amount bore no relationship to amount she was convicted of obtaining on charge of forgery in cr…
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Pollock v. Honorable Fred L. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984)…tent with decisions of the First and Fourth Districts, that petitioner “waived” the protection of sections 775.089(1) and 948.03(1)(g) at the time he entered into the plea agreement. G.H. v. State, 414 So. 2d 1135 (Fla. 1st DCA 1982); Dent v. State, 432 So. 2d 163 (Fla. 4th DCA 1983) (citing G.H.). In G.H., the court explained: We note the State’s argument that this point has been waived since the condition of restitution was part of a negotiated plea whereby the State agreed to drop the criminal mischief c…
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Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992)…and intelligently accepted the restitution amount as part of his negotiated plea. Thus, we find defendant “waived” the protection of section 775.089(6) by his own actions. See Godfrey, 506 So. 2d at 1158; Pollock, 450 So. 2d at 1186; Dent v. State, 432 So. 2d 163 (Fla. 4th DCA 1983); G.H. v. State 414 So. 2d 1135 (Fla. 1st DCA 1982). [*1266] Accordingly, we affirm the order under review.…
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)
- Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981)
- Colan's Rest. & Fla. Farm Bureau Cas. Ins. Co. v. Cranford, 414 So. 2d 1135 (Fla. 1st DCA 1982)
- Crowder v. State, 334 So. 2d 819 (Fla. 4th DCA 1976)