CHARLES MORGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Morgan appeals a restitution order requiring him to pay $51,009.34 following his conviction for grand theft. The court affirms, holding that Morgan waived his right to challenge the restitution amount by failing to raise his inability to pay at the trial court proceedings, despite having full notice and opportunity to do so.
Morgan waived his right to challenge the trial court's failure to determine his financial ability to pay by failing to assert his rights under Section 775.089(6) or otherwise raise an inability to pay at any point in the proceedings below. A defendant has the burden of demonstrating his financial resources and needs.
[1] A defendant waives the right to challenge a restitution order on appeal based on the trial court's failure to consider ability to pay if the defendant does not affirmativ…
[2] The burden of demonstrating financial resources and needs for restitution purposes rests with the defendant.
Previewing 2 of 4 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“It is true that the defendant had a right to require the court to consider the ability of the defendant to pay the restitution at the time of the entry of the restitution order.”
Establishes that defendants have a statutory right under Section 775.089(6) to have ability to pay considered
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Join FLexlaw to unlock all legal intelligenceMorgan was convicted of grand theft pursuant to a nolo contendere plea and placed on probation for two years with a restitution condition. At a subseq…
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NIMMONS, Judge.
Appellant appeals from an order requiring him to pay restitution in the amount of $51,009.34. He had been convicted, pursuant to a nolo contendere plea, of grand theft and the court had placed him on probation for two years with a condition of restitution, the amount to be determined pursuant to a subsequent hearing.
At the subsequent hearing, several witnesses were presented in order to establish the amount which the defendant had stolen. All of the testimony and argument presented by counsel at the hearing pertained to the determination of the correct amount. Throughout the hearing, there was no suggestion that the defendant would not be able to pay restitution, even after the trial court tentatively indicated that the amount would be upwards of $50,-000. Four days after the hearing, the court entered an order establishing the amount at $51,009.34 and requiring the defendant to pay such amount during his probationary period.
On appeal, the only point raised by the appellant is the failure of the trial court to consider the ability of the appellant to pay such restitution. Appellant does not contest the court’s implicit finding that the appellant was responsible for the theft of the above sum.
It is true that the defendant had a right to require the court to consider the ability of the defendant to pay the restitution at the time of the entry of the restitution order. See Section 775.089(6), Florida Statutes (1984 Supp.); Ballance v. State, 447 So. 2d 974, 976 (Fla. 1st DCA 1984). However, the defendant, by failing to assert, at any point in the proceedings below, his rights under Section 775.089(6), or to otherwise assert in any manner an inability to pay the restitution, waived his right to raise on appeal from the subject order the trial court’s failure to determine the defendant’s financial ability to pay. Section 775.089(7) provides, in pertinent part:
“(7) * * * The burden of demonstrating the financial 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 insolvency for the purpose of appointment of the public defender at the commencement of the case below and for purposes of appeal. We do not, however, believe that the fact that such orders were entered excuses the defendant’s failure to affirmatively assert his rights under Section 775.089(6) where he has had full opportunity to do so.
Nevertheless, we wish to make it clear that our ruling does not preclude the defendant, in a subsequent enforcement proceeding instituted by reason of the defendant’s failure to comply with the restitution requirements of his probation, from defending on the basis of his financial inability to pay. See Sections 948.032 and 948.06(4), Florida Statutes. However, under present law, the burden would be on the defendant to prove such financial inability. Section 948.06(4), Florida Statutes; Bass v. State, 473 So. 2d 1367, 1370 (Fla. 1st DCA 1985).
AFFIRMED.
MILLS and WENTWORTH, JJ., concur.
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Ladon Maurice Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993)…was willful. Jordan v. State, 610 So. 2d 616 (Fla. 1st DCA 1992). Once a willful violation has been shown, the burden shifts to the probationer to show by clear and convincing evidence that he or she did not have the ability to pay. Morgan v. State, 491 So. 2d 326, 327 (Fla. 1st DCA 1986); Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA), review denied, 576 So. 2d 287 (Fla.1990); Word v. State, 533 So. 2d 893 (Fla. 3d DCA 1988). Any probation violation sufficient to trigger revocation “must be substantial and…
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Butts v. State, 575 So. 2d 1379 (Fla. 5th DCA 1991)…Williams v. State, 565 So. 2d 849, 851 (Fla. 1st DCA 1990); Dickens v. State, 556 So. 2d 782, 785 (Fla. 2d DCA 1990); Abbott v. State, 543 So. 2d 411, 413 (Fla. 1st DCA 1989); Hamrick v. State, 532 So. 2d 71, 72 (Fla. 1st DCA 1988); Morgan v. State, 491 So. 2d 326, 327 (Fla. 1st DCA 1986). In short, a defendant must affirmatively assert his rights under section 775.089(6), when he is given the opportunity to do so. In the instant case, the state correctly points out that the trial court did in fact consider…
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Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)…itution order, “the trial judge must suspend the sentencing hearing for a reasonable time and allow the defendant to be heard on issues relevant to restitution.” Goodson v. State, 400 So. 2d 791, 793 (Fla. 2nd DCA 1981); Wilson. Cf. Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986) (failure of defendant to assert right to restitution proceedings constituted waiver of right to appeal trial court’s failure to determine ability to pay). In setting the terms and conditions of probation, the trial court may req…
Previewing 3 of 9 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)
- Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)
- Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)
- Harris v. State, 452 So. 2d 1041 (Fla. 2d DCA 1984)