DOROTHY ILEEN HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution, attorney fees, and costs imposed as part of a sentence require notice and an opportunity for the defendant to be heard.
The defendant was convicted of second-degree murder and sentenced, which included restitution, attorney fees, and costs. The appellate court reviewed …
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DANAHY, Judge.
Upon review of the briefs and record on appeal) we find that the appellant has failed to demonstrate that the evidence was insufficient to sustain her conviction for second degree murder. Therefore, we affirm the judgment of guilt.
However, we disapprove of that part of the sentence which requires the defendant to pay restitution, attorney fees, and costs. Section 775.089, Florida Statutes (1983), authorizes a court to impose restitution as part of a sentence. Although the section does not specifically provide for notice and hearing before restitution may be imposed, it clearly contemplates that the trial court shall make determinations as to the defendant’s ability to pay, and the amount and method of payment. Similar provisions appear in section 948.03, Florida Statutes (1983), which authorizes the imposition of restitution as a condition of probation. Our supreme court has interpreted the latter section as requiring notice and hearing before restitution may be ordered. Fresneda v. State, 347 So. 2d 1021 (Fla.1977). We believe the same interpretation should be applied to section 775.089. Accordingly, we hold that before restitution may be imposed as part of a sentence pursuant to section 775.089, the defendant must be given notice and an opportunity to be heard.
The imposition of attorney fees and costs is similarly flawed by the failure to afford notice and opportunity to be heard. Notice and hearing are specifically required by section 27.56(7).
Nothing we say here precludes the imposition of restitution and taxing of costs against the defendant after proper notice and hearing. Accordingly, we reverse the sentence imposed on the defendant and remand for resentencing in order to afford the trial court an opportunity to impose restitution and tax costs upon proper notice and hearing to the defendant.
BOARDMAN, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Carney v. State, 458 So. 2d 13 (Fla. 1st DCA 1984)…rdered appellant to make restitution in the case at bar, in conformity with Section 775.089, Florida Statutes (1983), after notice to appellant and the opportunity to be heard as to whether he had the ability to pay restitution, see Harris v. State, 452 So. 2d 1041 (Fla. 2d DCA 1984), then appellant’s purported failure to make restitution would undoubtedly constitute a "clear and convincing reason” for departure from the guidelines. Compare Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984) (violation of a su…
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Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986)…inancial resources of the defendant and the financial needs of the defendant and his dependents is on the defendant.” Of course, in the case at bar, unlike such cases exemplified by Fresneda v. State, 347 So. 2d 1021 (Fla.1977) and Harris v. State, 452 So. 2d 1041 (Fla. 2nd DCA 1984), the proceedings below were not flawed by any failure to provide the defendant with notice and opportunity to be heard on the issues regarding restitution. We realize that there exist in the records of this case orders of insolv…
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Gilford v. State, 487 So. 2d 53 (Fla. 2d DCA 1986)…aws of Florida. Therefore, section 775.089, Florida Statutes (1983) was still in effect and requires notice and an opportunity to be heard before restitution [*55] can be imposed. Gibbons v. State, 479 So. 2d 284 (Fla. 2d DCA 1985); Harris v. State, 452 So. 2d 1041 (Fla. 2d DCA 1984). Appellee argues that appellant was not entitled to notice and a hearing before imposition of restitution on revocation of community control since restitution was initially ordered as a condition of appellant’s community control…
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- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)