ROBERT GILFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Gilford was convicted of aggravated battery and sentenced to community control with restitution. When community control was revoked, the trial court imposed additional restitution, court costs, and a payment to the Crimes Compensation Trust Fund without providing notice or a hearing. The appellate court reversed, holding that the 1983 version of the restitution statute—in effect when the crime was committed—required advance notice and an opportunity to be heard.
The trial court erred in imposing restitution without notice and hearing because the crime was committed before the October 1, 1984 effective date of the amended restitution statute, making the 1983 version controlling, which required advance notice and opportunity to be heard. The court also erred in delegating to the probation officer the determination of restitution amount and in ordering an indigent defendant to pay court costs and Crimes Compensation Trust Fund payments without notice and opportunity to be heard.
[1] A statute in effect at the time of the commission of a crime, rather than at the time of sentencing, controls the imposition of restitution.
[2] A trial court unlawfully delegates judicial responsibility when it orders restitution in an amount to be determined by a probation officer.
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Join FLexlaw to unlock all legal intelligence“the controlling statute is that which is in effect at the time of the commission of the crime, rather than at the time of sentencing”
Establishes the governing rule for which version of the restitution statute applies to Gilford's sentencing
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Join FLexlaw to unlock all legal intelligenceGilford was convicted of aggravated battery with a deadly weapon on October 29, 1984, and sentenced to two years community control with $20 monthly re…
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CAMPBELL, Judge.
Appellant was convicted of aggravated battery with a deadly weapon and sentenced to two years community control on October 29, 1984. As part of his sentence, appellant was required to pay $20 per month in restitution in an amount to be determined by his probation officer. An affidavit alleging violation of community control was executed on December 26, 1984. On March 8, 1985, community control was revoked and appellant was sentenced to thirty months incarceration and ordered to pay $15 to the Crimes Compensation Trust Fund and $2 in court costs. He was also ordered to make restitution pursuant to section 775.089, Florida Statutes (1983).
Appellant argues that the trial court erred in imposing restitution and in requiring him to pay court costs and make payment to the Crimes Compensation Trust Fund as a part of his sentence without affording him notice or an opportunity to be heard.
Section 775.089, Florida Statutes (Supp.1984) provides that advance notice is no longer required before imposing restitution. Gilmore v. State, 479 So. 2d 791 (Fla. 2d DCA 1985). However, the controlling statute is that which is in effect at the time of the commission of the crime, rather than at the time of sentencing. Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA), cert. denied, 298 So. 2d 411 (Fla.1974).
In the instant case, appellant committed the crime before the effective date of the amendment to section 775.089, which was October 1, 1984. Chapter 84-363, section 17, Laws of Florida. Therefore, section 775.089, Florida Statutes (1983) was still in effect and requires notice and an opportunity to be heard before restitution 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 and could, therefore, properly be applied to his sentence for violation of community control.
Without addressing the validity of appellee’s argument, we note that it was error for the trial court, in its order imposing community control, to order restitution in an amount to be determined by the probation officer since this unlawfully delegates a judicial responsibility to a nonjudicial officer. Fletcher v. State, 405 So. 2d 748 (Fla. 2d DCA 1981). It was also error to order appellant, who had been declared indigent, to pay court costs and fees to the Crimes Compensation Trust Fund without proper notice' and opportunity to be heard. Jenkins v. State, 444 So. 2d 947 (Fla.1984).
Accordingly, we reverse the trial court’s imposition of restitution, payment of court costs and payment to the Crimes Compensation Trust Fund. On remand, if the court determines to order restitution, court costs and payment to the Crimes Compensation Trust Fund, it shall do so only upon proper notice to appellant and an opportunity for hearing.
GRIMES, A.C.J., and LEHAN, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)…the presentence investigation (PSI). Under section 775.089, Florida Statutes (1989), appellant was not entitled to advance notice before the trial court imposed restitution. See Gaskin v. State, 513 So. 2d 1087 (Fla. 1st DCA 1987); Gilford v. State, 487 So. 2d 53 (Fla. 2nd DCA 1986). The trial court agreed to provide a restitution hearing, as timely requested by defense counsel, but none was held. In Johnson v. State, 547 So. 2d 300 (Fla. 3rd DCA 1989), the appellate court vacated the restitution orders and…
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State v. Battle, 661 So. 2d 38 (Fla. 2d DCA 1995)…e committed before the amendment. Castle v. State, 305 So. 2d 794 (Fla. 4th DCA 1974), affirmed, 330 So. 2d 10 (Fla. 1976). The controlling statute for punishment is the statute in effect at the time of the commission of the crime. Gilford v. State, 487 So. 2d 53 (Fla. 2d DCA 1986). Thus, the trial court was required to sentence based on section 893.13(l)(e), Florida Statutes (1993) (see note following statute; section 22, ch. 93-406, Laws of Florida).1 Because Mr. Battle was selling cocaine, rather than pur…
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Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986)…the probation officer, since this constitutes an unlawful delegation of judicial responsibility to a nonjudicial officer. Hamm v. State, 403 So. 2d 1155, 1156 (Fla. 1st DCA 1981); Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986); Gilford v. State, 487 So. 2d 53 (Fla. 2d DCA 1986); Cisneros v. State, 422 So. 2d 1087 (Fla. 3rd DCA 1982). [*629] Accordingly, on the basis of this error, we are required to reverse that portion of the probation order which directs appellant to make restitution as directed by his…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA 1974)
- McLAIN v. Palm Beach Cnty., 479 So. 2d 791 (Fla. 4th DCA 1985)
- Harris v. State, 452 So. 2d 1041 (Fla. 2d DCA 1984)
- Fletcher v. State, 405 So. 2d 748 (Fla. 2d DCA 1981)
- Gibbons v. State, 479 So. 2d 284 (Fla. 2d DCA 1985)
- Eston Bullard v. State, 298 So. 2d 411 (Fla. 1974)
- Fashions v. Mildred A. Bluh & the Indus. Relations Comm'n, 298 So. 2d 411 (Fla. 1974)