LANE WARZYBOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lane Warzybok appealed orders imposing restitution and costs following his no-contest plea to grand theft. The court reversed the cost assessments under two statutes on constitutional and procedural grounds but affirmed the restitution order to the insurance company.
The court reversed the $200 cost assessment under section 27.3455 as an ex post facto violation, reversed the $20 cost assessment under section 960.20 for lack of proper notice, affirmed the $2,000 restitution order to the insurance company, and remanded for proceedings consistent with the opinion.
[1] Imposing statutory costs on a defendant for a crime committed before the statute's effective date constitutes an ex post facto violation.
[2] An insurance company subrogated to the rights of a victim may be considered a victim for purposes of restitution.
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Join FLexlaw to unlock all legal intelligence“the section 27.3455 imposition of costs against him is an ex post facto violation of the Constitution of the United States and Constitution of the State of Florida because he committed the crime on April 11, 1984, prior to the effective date of the statute”
Establishes the ex post facto grounds for striking the $200 cost assessment
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Join FLexlaw to unlock all legal intelligenceWarzybok entered a no-contest plea to grand theft for a crime committed on April 11, 1984. Adjudication was withheld and he received two years' probat…
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PER CURIAM.
This case involves an appeal of the order of restitution and assessment of costs against appellant.
Appellant entered a plea of no contest to a charge of grand theft. Adjudication was withheld and appellant received two years’ probation. In addition, the trial court ordered appellant to pay $2,000.00 restitution to Northeast Insurance Company and assessed $200.00 costs pursuant to section 27.3455, Florida Statutes (1985), and $20.00 costs pursuant to section 960.20, Florida Statutes (1985).
There are several points before us on appeal.
First, appellant correctly asserts that the section 27.3455 imposition of costs against him is an ex post facto violation of the Constitution of the United States and Constitution of the State of Florida because he committed the crime on April 11, 1984, prior to the effective date of the statute. Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986); Yost v. State, 489 So. 2d 131 (Fla. 5th DCA 1986). After a review of the colloquy it appears that appellant raised a timely ex post facto objection below. Therefore, on the authority of Bowman, we strike the $200.00 costs pursuant to section 27.3455 and recertify to the supreme court the question certified in Bowman.
Since we strike the assessment of costs under section 27.3455, we need not address appellant’s remaining two challenges to that section as applied to him.
Appellant next contends that it was error for the court to order him to make restitution to the insurance company because the insurance company is not a “victim” as defined in section 775.089, Florida Statutes (1985). We disagree. This court has recently held in Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987), that the insurance company is subrogated to the rights of the victim. Thus, the court’s order was correct in this respect.
Appellant also argues that the court erred in ordering him to make restitution without prior determination of his ability to pay. Since appellant failed to object to the amount of restitution below, we affirm the order of restitution. See Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987).
Lastly, appellant correctly urges that the trial court erred in assessing costs pursuant to section 962.20, Florida Statutes (1985), without prior notice. Jenkins v. State, 444 So. 2d 947 (Fla.1984). Accordingly, we strike the $20.00 costs imposed under that statute without prejudice to the state seeking costs after proper notice and discovery hearing.
We reverse the assessment of costs pursuant to sections 27.3455 and 960.20 and remand for proceedings consistent with this opinion. We affirm the order of restitution.
DANAHY, C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
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Longo v. State, 580 So. 2d 212 (Fla. 4th DCA 1991)…pay restitution to people not named in the information. Williams v. State, 530 So. 2d 1109 (Fla. 4th DCA 1988). However, restitution may be paid to insurance companies subrogated to the rights of victims named in the information. Warzybok v. State, 505 So. 2d 507 (Fla. 2d DCA 1987). [*216] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. ANSTEAD and LETTS, JJ., concur. . Section 817.036 was repealed by Ch. 87-382, § 2, Laws of Florida. . The counts at issue and the victims named in these counts include:…
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Wiggins v. State, 580 So. 2d 344 (Fla. 3d DCA 1991)…PER CURIAM. Affirmed. See Ferris v. State, 558 So. 2d 179 (Fla. 2d DCA 1990); Warzybok v. State, 505 So. 2d 507 (Fla. 2d DCA 1987); and Pollock v. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984).…
Authorities 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)
- Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987)
- Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987)
- Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987)