VICTOR ALAN HOWREN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that a written sentence must conform to the oral pronouncement and that restitution requires factual support.
[1] A written sentence must conform to the trial court's oral pronouncement of that sentence.
[2] A defendant preserves the issue of restitution for appellate review when the trial court fails to state the amount of restitution ordered at the sentencing hearing.
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 intelligenceThe appellant was convicted of burglary and grand theft. The written sentencing order for community control and restitution differed from the oral pro…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burglary Of A Dwelling cases and more on FLexlaw
HALL, Acting Chief Judge.
Appellant Victor Howren appeals his sentence for burglary of a dwelling and grand theft. He raises four points in this appeal but we find merit in only two of those points.
At the appellant’s jury trial, the appellant’s companion testified that he and the appellant broke into the victim’s mobile home and stole a Russian pistol, some change, and some marijuana. The officer who arrested the men and interviewed the appellant testified that the appellant explained how they had entered the mobile home and what they had stolen from it. At the conclusion of trial, the jury found the appellant guilty as charged of burglary of a dwelling and grand theft.
The appellant first argues that the written order placing him on community control fails to conform to the trial court’s oral pronouncement at sentencing. At the appellant’s sentencing hearing, the court announced that “[i]ts the sentence of this Court that ... you be placed on two years’ community control. As a term and condition of that community control you will be committed to the sheriff of Lee County, Florida for confinement in the Lee County Jail for a period of 364 days.” The written order placing the appellant on community control reads “[i]t is hereby ordered and adjudged that you be confined in the County Jail for a term of Three Hundred & Sixty-Four Days ... that after you have served 364 of said term, you shall be placed in a community control program for a period of two (2) years....”
II, 2] A written sentence must not vary from the oral pronouncement of that sentence. Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985). The written order of community control in this case varies from the oral pronouncement of community control because it directs that the appellant be placed on two years’ community control after he has served 364 days in jail, whereas the oral pronouncement directed that the appellant be placed on two years’ community control and serve 364 days in jail during those two years. Consequently, we must remand this cause for correction of the written order to conform to the trial court’s oral pronouncement.
The appellant next argues that there is no factual support for the order setting restitution at $1500 and that restitution should be apportioned between him and his companion. At the hearing at which the appellant’s presentence investigation report was considered, the appellant’s counsel stated that, with regard to the report’s recommendation that restitution be set at $1500, there had been no evidence before the court or the jury that that figure represented the value of the stolen pistol. The assistant state attorney pointed out that the victim testified that if he were able to replace the gun, it would cost him $1000.
At the sentencing hearing a few days later, the trial court ordered the appellant to pay restitution but it did not state the amount thereof. It was not until the written order of community control was entered that the appellant was informed that restitution had been set at $1500.
The state argues that the appellant has failed to preserve the issue of restitution for this court’s review because he failed to object to the imposition of restitution at the sentencing hearing, thereby 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 hold a hearing to determine the proper amount of restitution the appellant should be ordered to pay.
We do not direct the trial court to apportion restitution between the appellant and his companion because the factual circumstances of this case do not justify it. Section 775.089, Florida Statutes (1985), does not require the trial court to apportion restitution among defendants equally guilty of the crime which resulted in the loss to the victim. Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987).
We do not reach the appellant’s arguments regarding the imposition of fines and court costs because the appellant failed to object thereto in the trial court.
Reversed and remanded for proceedings consistent with this opinion.
THREADGILL, J., and UPCHURCH, Associate J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995)…appellant had no opportunity to voice an objection at the sentencing hearing because the trial court did not state the amount of restitution it was ordering appellant to pay; therefore, this issue is properly before this court. See Howren v. State, 510 So. 2d 1142, 1144 (Fla. 2d DCA 1987). The imposition of restitution without notice or a hearing is error. Dominique v. State, 590 So. 2d 1059 (Fla. 4th DCA 1991); Mounds v. State, 526 So. 2d 1084 (Fla. 4th DCA 1988). Although the trial court did not err in ord…
-
Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990)…reon. We find the trial court erred in ordering restitution 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…
-
Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)…ed that the orders were entered without the opportunity for the defendant to be heard. See Strickland v. State, 596 So. 2d 1155 (Fla. 2nd DCA 1992) (reversing restitution orders where defendant not afforded opportunity to be heard); Howren v. State, 510 So. 2d 1142 (Fla. 2nd DCA 1987). Where no prior notice is given to a defendant, and he objects to, or otherwise contests, the restitution order, “the trial judge must suspend the sentencing hearing for a reasonable time and allow the defendant to be heard on is…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987)
- Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985)
- Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987)