MARK S. AMISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Mark Amison appeals his conviction for second-degree murder and challenges a $1,500 restitution order and costs assessed against him. The court affirmed the restitution amount but reversed and remanded on the restitution and costs issues because the trial court failed to determine appellant's ability to pay as required by statute.
The $1,500 restitution amount is correct because insurance company reimbursement does not reduce the restitution obligation due to subrogation principles. However, the restitution order must be reversed and remanded because the trial court failed to determine appellant's ability to pay as required by statute. Similarly, the $200 costs and other assessed fees must be struck because they were imposed without prior determination of ability to pay and without notice and opportunity to be heard.
[1] Restitution may be ordered for the full amount of the victim's losses, even if an insurance company has reimbursed a portion of those losses, as the insurance company is…
[2] A court must determine a defendant's ability to pay before imposing restitution.
Previewing 2 of 5 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 well settled that the insurance company is subrogated to the rights of the victim”
Establishes that insurance reimbursement does not reduce the restitution amount owed by the defendant
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Join FLexlaw to unlock all legal intelligenceAmison was convicted by jury of second-degree murder. The trial court ordered him to pay $1,500 restitution to the victim's next-of-kin under section …
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PER CURIAM.
Appellant appeals from the trial court’s order requiring him to pay $1,500 restitution and from the costs assessed against him.
Appellant was tried by jury and convicted of second degree murder. The court entered judgment and pursuant to section 775.089, Florida Statutes (1985), ordered appellant to pay $1,500 restitution to the victim’s next-of-kin for the losses the victim sustained as a result of appellant’s offense.
At sentencing defense counsel objected to the order of restitution. On appeal appellant again challenges the imposi tion of restitution on two grounds. He first contends that $1,000 of that amount had already been reimbursed by the insurance company and therefore $500 unreim-bursed expenses is the correct balance of loss sustained. We conclude that the $1,500 of restitution imposed is correct because it is well settled that the insurance company is subrogated to the rights of the victim.
Secondly, appellant argues that the court erred in imposing restitution without prior determination as to appellant’s ability to pay and consideration of other enumerated criteria, as required by section 775.-089(6). Dolan v. State, 468 So. 2d 442 (Fla. 2d DCA 1985). We agree and reverse and remand for proper hearing to determine appellant’s ability to pay.
Appellant also raises several challenges to the imposition of costs. He first argues that the crime for which he was convicted occurred prior to July 1, 1985, and therefore the $200 imposed against him pursuant to section 27.3455, Florida Statutes (1985), is an ex post facto violation. See Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). Since appellant failed to raise this objection in the trial court, we decline to rule on this issue now. However, our holding is without prejudice to appellant raising this challenge pursuant to Florida Rule of Criminal Procedure 3.850. Parker v. State, 500 So. 2d 721 (Fla. 2d DCA 1987); Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986).
Next, appellant correctly alleges error in imposition of costs pursuant to section 27.3455(1) without prior determination of ability to pay. Skinner v. State, 498 So. 2d 618 (Fla. 1st DCA 1986). Accordingly, we strike the $200 costs without prejudice to the state filing a new motion.
We also agree with appellant’s final contention that the court erred in assessing costs and fees against him pursuant to sections 960.20, 943.25(4) and (8), Florida Statutes (1985), without prior notice and opportunity to be heard. Jenkins v. State, 444 So. 2d 947 (Fla.1984); Treadway. We strike the assessment of costs without prejudice to the state filing a proper motion.
Reverse and remand with instructions consistent with this opinion.
DANAHY, C.J., SANDERLIN, J., and BOARDMAN, EDWARD F„ (Ret.) J., concur.
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Citator
Cited By (12 total)
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Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)…insurance company is subrogat-ed to the rights of the victim and restitution can be ordered for the full amount of the victim’s loss regardless of reimbursement to the victim. See Jarawdi v. State, 521 So. 2d 261 (Fla. 2d DCA 1988); Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987). Accordingly, we reverse and remand for a new restitution hearing in accordance with this opinion. BLUE, A.C.J., and QUINCE, J., concur. . Section 775.089(6) -was amended, effective May 8, 1995, to provide that a defendant's ab…
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Bowman v. State, 698 So. 2d 615 (Fla. 2d DCA 1997)…le, not to make him better off than before the theft. See Branker v. State, 650 So. 2d 195 (Fla. 4th DCA 1995). Allstate was awarded restitution only by virtue of being subrogated to the rights of the real victim, James Elliott. See Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987). Therefore, Allstate’s restitution claim is limited to the amount of Elliott’s loss. In this ease, it appears that Elliott received both the insurance proceeds as well as the recovered ATV. If the recovered ATV has any value, Elli…
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Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990)…itution in the amount of $40,000 because it failed to inquire into Green’s ability to pay and the State failed to present any evidence of the amount of the victim’s medical bills. Howren v. State, 510 So. 2d 1142 (Fla. 2d DCA 1987); Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987); Thomas v. State, 517 So. 2d 132 (Fla. 4th DCA 1987); Dolan v. State, 468 So. 2d 442 (Fla. 2d DCA 1985). The restitution order is reversed by this court and remanded to the trial court with instructions to conduct a new hearing at…
Previewing 3 of 12 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)
- Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986)
- Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986)
- Boston v. Antinori & Thury, P.A., 500 So. 2d 721 (Fla. 2d DCA 1987)
- Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986)
- Skinner v. State, 498 So. 2d 618 (Fla. 1st DCA 1986)
- Dolan v. State, 468 So. 2d 442 (Fla. 2d DCA 1985)