JOHN EVERETT PETTWAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1987-02-27
No. 85-2408
SANDERLIN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
502 So. 2d 1366 Florida District Court of Appeal, Second District (1987) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Pettway appeals his petit theft conviction on three grounds: improper imposition of costs without notice and hearing, improper restitution order without required findings and hearing, and judgment failing to specify the offense type and degree. The court finds merit in all three claims and reverses and remands for correction.


Holding

The court held that the trial judge erred in all three respects. The judge must provide notice and hearing before imposing costs under section 27.3455 pursuant to Jenkins v. State. The judge failed to comply with section 775.089(6) by not considering required statutory factors and not specifying the amount and terms of restitution. The judgment must be corrected to reflect that the conviction was for petit theft, a second degree misdemeanor, not a third degree felony.


Headnotes

[1] A trial court must provide notice and a hearing before imposing costs under section 27.3455, Florida Statutes (1985).

[2] A trial court must consider specific factors, including the victim's loss and the defendant's financial resources and needs, when determining the amount and terms of rest…

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Key Quotes

“the trial judge did not afford him notice and hearing before assessing costs under section 27.3455, which he claims is required by the decision of the Supreme Court of Florida in Jenkins v. State”

Establishes the procedural requirement of notice and hearing before imposing costs, citing Jenkins v. State

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Facts & Procedural History

Pettway was convicted of petit theft. The information included allegations of two prior petit theft convictions, but the trial judge ruled that the st…

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Opinion of the Court
DANAHY, Chief Judge.

DANAHY, Chief Judge.

The defendant challenges in three respects the judgment and sentence entered against him upon his conviction of petit theft. First, he claims that the trial judge erred in imposing costs against him under section 27.3455, Florida Statutes (1985); second, he asserts that the trial judge erred in the manner in which he imposed restitution; and, third, he objects to the fact that the judgment form does not reflect the type and degree of crime for which he was convicted. We find merit in each of these claims.

As to the imposition of costs under section 27.3455, the defendant points out that the trial judge did not afford him notice and hearing before assessing costs under section 27.3455, which he claims is required by the decision of the Supreme Court of Florida in Jenkins v. State, 444 So. 2d 947 (Fla.1984). This court has recently so held. Beahn v. State, 499 So. 2d 74 (Fla. 2d DCA 1986). Accordingly, we must remand this cause to the trial judge to afford the defendant the procedural requirements of Jenkins v. State. We note that section 27.3455 has been amended effective October 1, 1986. Ch. 86-154, § 1, Laws of Fla. With regard to restitution, we find that the trial judge failed to follow the requirements of section 775.089(6), Florida Statutes (1985). That subsection requires that the trial judge, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and his dependents, and such other factors which he deems appropriate. We point out that section 775.089(3), Florida Statutes (1985), permits the trial judge to require that the defendant make restitution in specified installments or within a specified period, so long as the last installment or the end of the period is not later than five years after the end of the term of imprisonment imposed, where the trial judge does not order probation. In this case, the judgment recites merely that “the Defendant is to make restitution.” Thus the defendant had no opportunity to object to the amount or terms of payment of the restitution ordered.

Accordingly, on remand the trial judge is directed to hold a hearing, with notice to the defendant, for the determination of the matters required by section 775.089(6), Florida Statutes (1985). We point out that our holding in this respect does not diminish in any way our prior holding that no advance notice (other than that provided by the statute) is necessary for the imposition of restitution and that a defendant has the burden of objecting in the trial court to the amount of restitution and of demonstrating his financial circumstances. § 775.089(7); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987).

On the lust issue, the defendant points out that he was charged with petit theft in an information which included allegations that he had been convicted of two prior petit thefts. However, the trial judge ruled that the state failed to prove the prior convictions for petit thefts. As a result, the defendant’s conviction constituted a second degree misdemeanor instead of a third degree felony. The judgment, however, does not specify the type and degree of crime for which the defendant was convicted. Accordingly, on remand the judgment should be corrected to reflect that the defendant was convicted of petit theft, a second degree misdemeanor. Reversed and remanded for further proceedings consistent with this opinion.

SANDERLIN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)
    …assessed, consider the factors enumerated therein. However, appellant did not object below to the court’s order of restitution. Thus, appellant failed to preserve for appeal the trial court’s failure to make this determination. See Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987). Nevertheless, we must agree with appellant’s contention that the trial court erred in delegating the determination of the amount of restitution to appellant’s probation officer…
  • Gaskin v. State, 513 So. 2d 1087 (Fla. 1st DCA 1987)
    …. State, 479 So. 2d 791 (Fla. 2d DCA 1985). However, in the case below, the trial court failed to follow the requirements of Section 775.089(6), Florida Statutes, to consider the financial resources of appellant and his dependents. Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987). The public defender tried to question the imposition of restitution, but the trial judge foreclosed any discussion and pronounced sentence. On remand, the trial court should give appellant a full and fair opportunity to demonstra…
  • Howren v. State, 510 So. 2d 1142 (Fla. 2d DCA 1987)
    …by waiving his previous objection. We disagree. Because the trial court did not state at the sentencing hearing the amount of restitution it was ordering the appellant to pay, the appellant had no opportunity to voice an objection. Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987). Thus, the issue of restitution is properly before this court. As has been shown, there was no factual support for the amount of restitution imposed. Consequently, we must remand this cause with directions that the trial court hol…

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