SPENCER DURA MASSLIENO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Spencer Dura Masslieno appeals a probation restitution order on the ground that the trial court improperly delegated to the probation officer the authority to determine the restitution amount. The court holds that while restitution as a probation condition is proper, the amount must be judicially determined, not left to a probation officer's discretion.
A trial court may impose restitution as a probation condition under Florida Statutes, but it is error to leave the restitution amount to be determined by the probation officer, as this constitutes an unlawful delegation of judicial responsibility to a nonjudicial officer. The trial court must judicially determine the restitution amount.
[1] A trial court commits error by ordering restitution in an amount to be determined by a probation officer, as this constitutes an unlawful delegation of judicial responsib…
[2] Restitution may be imposed as a condition of probation.
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Join FLexlaw to unlock all legal intelligence“it is error for the trial court to order restitution in an amount to be determined by the probation officer, since this constitutes an unlawful delegation of judicial responsibility to a nonjudicial officer”
Establishes the controlling legal principle that the court cannot delegate restitution amount determination to probation officers
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Join FLexlaw to unlock all legal intelligenceAppellant Masslieno was placed on probation and ordered to make restitution for eleven forged checks. The trial court's probation order directed appel…
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JOANOS, Judge.
Appellant Spencer Dura Masslieno appeals from the trial court’s order imposing restitution as a condition of probation. The single allegation of error presented in this appeal concerns the language employed by the trial court in the order directing appellant to pay restitution.- For the reasons set forth below, we reverse.
In both the oral pronouncement of probation and the written order placing appellant on probation, the trial court directed appellant to “make full restitution as directed by probation officer.” Restitution as a condition of probation is proper pursuant to Sections 775.089 and 948.03(1)(e), Florida Statutes (1985).
It is well settled, however, that it is error for the trial court to order restitution in an amount to be determined by 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). 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 probation officer, with directions to the trial court to enter an order reflecting the trial court’s determination of the amount of restitution to be paid. In so doing, we note our agreement with the State’s contention that this probationer, who must now make restitution for eleven forged checks, will have difficulty in asserting that he is without knowledge of the amount of restitution due. In addition, we are aware that if a dispute had arisen between the probation officer and appellant as to the amount required to be paid under the order, the Court may have as a practical matter been called upon to resolve the disagreement. Nevertheless, we reverse and remand.
Accordingly, the order imposing restitution as a condition of probation is affirmed, but the portion of the order requiring restitution as directed by the probation officer is reversed and remanded with directions.
MILLS and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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McCASKILL v. State, 520 So. 2d 664 (Fla. 1st DCA 1988)…restitution is “to be determined by the court.” Hence, the determination of the amount of restitution may not be delegated to a juvenile counsel- or, J.J.S. v. State, 465 So. 2d 621 (Fla. 2d DCA 1985), nor to a probation officer, Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986). No doubt it would have been reversible error for the court to explicitly order the probation officer to determine the amount of restitution. J.J.S. v. State, supra; Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). While the se…
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James v. State, 499 So. 2d 24 (Fla. 1st DCA 1986)…court’s attention and remedied. Nevertheless, we affirm the order of probation since the record is silent as to whether the trial court did indeed improperly delegate its responsibility to determine the amount of restitution. Cf. Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986). However, in order to avoid such error, the cause is remanded for the court to hold a prompt hearing to establish the amount and to amend the order accordingly. See Goodling v. State, 482 So. 2d 594 (Fla. 4th DCA 1986); J.J.S. v.…
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Walls v. State, 609 So. 2d 83 (Fla. 1st DCA 1992)…ation of the amount of restitution was clearly error, Shaddix v. State, 599 So. 2d 269 (Fla. 1st DCA 1992), which was not remedied by the trial court’s offer to hold a hearing should Walls disagree with the probation officer. See Masslieno v. State, 498 So. 2d 628, 629 (Fla. 1st DCA 1986) (court reversed similar delegation despite possibility that trial court could have been called upon to resolve any disagreement between defendant and probation officer as to the amount). As for Walls’ failure to object, a t…
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
- Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986)
- Hamm v. State, 403 So. 2d 1155 (Fla. 1st DCA 1981)
- Gilford v. State, 487 So. 2d 53 (Fla. 2d DCA 1986)
- Nat'l Fire Ins. Co. of Hartford v. Peters, 422 So. 2d 1087 (Fla. 3d DCA 1982)