ROGER D. CLIBURN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roger Cliburn appeals his sentence for dealing in stolen property, challenging restitution and costs imposed by the trial court. The appellate court strikes restitution for the underlying burglary, appellate costs for an insolvent defendant, and improperly imposed nominal costs, finding no legal basis for assessing damages unrelated to his conviction and constitutional concerns regarding costs imposed on indigent defendants.
The court struck all restitution costs for the burglary, all appellate costs imposed on the insolvent defendant, and all nominal costs that were imposed without prior notice and hearing. The nominal costs may be reassessed only after proper notice and hearing. The sentence was affirmed in all other respects.
[1] Restitution for damages from a burglary cannot be assessed against a defendant convicted solely of dealing in stolen property unless the defendant was criminally involved…
[2] Victim's travel expenses may be too remote to be assessed as restitution against a defendant convicted of dealing in stolen property.
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Join FLexlaw to unlock all legal intelligence“There is no evidence in the record that the defendant was ever criminally involved in the commission of the above-stated burglary or that he had ever received the unrecovered property stolen in the subject burglary.”
Establishes that restitution for the burglary cannot be imposed because the defendant had no criminal involvement in the underlying burglary.
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Join FLexlaw to unlock all legal intelligenceCliburn was convicted of dealing in stolen property that originated from a burglary. All stolen property traded by the defendant was recovered and ret…
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PER CURIAM.
This is an appeal by an insolvent defendant, Roger D. Cliburn, from a sentence imposed upon a duly entered guilty plea and conviction for dealing in stolen property. The stolen property traded by the defendant was all recovered and returned to the owner. The defendant attacks the sentence as illegally requiring him to pay (1) $1,775 as restitution for (a) the value of all property taken, but not recovered, in the burglary which yielded the stolen property traded by the defendant in this case, (b) the repair costs for the door damaged in the above-stated burglary, and (c) the transportation costs for the owner to return home from out-of-town to attend to the damage caused by the above-stated burglary to her house; (2) the filing fee and cost of preparing a record in the event of an appeal and an affirmance by the appellate court; and (3) miscellaneous nominal court costs, and assessments, to wit: court costs ($10), crime compensation trust assessment ($15), and other costs ($29) expended by the county. We entirely agree with the defendant and strike such provisions from the sentence.
First, there was no legal basis on this record for assessing the alleged burglary restitution costs under Section 775.-089(1), Florida Statutes (1983).
There is no evidence in the record that the defendant was ever criminally involved in the commission of the above-stated burglary or that he had ever received the unrecovered property stolen in the subject burglary. The defendant was convicted of dealing in stolen property taken ,from a burglary, and was not, so far as the record shows, criminally involved in the burglary itself. This being so, it is plain that the damages and losses sustained by the owner in the said burglary were not “caused by the defendant’s offense,” § 775.089(1), Fla.Stat.(1983), because such damages and losses bear no significant relationship to the offense for which the defendant was convicted. See, e.g., J.S.H. v. State, 472 So. 2d 737 (Fla.1985); Fresneda v. State, 347 So. 2d 1021 (Fla.1977); Roberts v. State, 467 So. 2d 439 (Fla. 5th DCA 1985).
Moreover, even if the defendant had been convicted of or had been criminally involved in the instant burglary, it is doubtful that the victim’s travel expenses, as ordered in this case, could properly have been assessed against the defendant as such expenses were entirely remote in nature. See K.M.C. v. State, 485 So. 2d 1296, 1298 (Fla. 1st DCA), rev. denied, 492 So. 2d 1335 (Fla.1986); Ramos v. State, 444 So. 2d 87 (Fla. 3d DCA 1984).
Second, the filing fee and record preparation costs could not properly be assessed against the defendant as he has been adjudicated insolvent below. There is no legal authority under Florida law for the imposition of such appellate costs against insolvent defendants. See Stanley v. State, 459 So. 2d 494, 495 (Fla. 4th DCA 1984); §§ 27.56, 924.17 Fla.Stat. (1983). Indeed, to impose such costs on an insolvent defendant, as here, would raise grave constitutional concerns. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.891 (1956); McGeorge v. State, 386 So. 2d 29, 30 (Fla. 5th DCA 1980).
Third, the assessment of certain nominal costs against the defendant, as detailed above, was legally authorized under Florida law, §§ 27.56(1), 943.25, Fla. Stat.(1983), but were unlawfully imposed in this case because they were ordered paid without giving the defendant prior notice and a hearing as required by Florida law. The fact that the court allowed the defendant to request a hearing on certain of these costs after the costs had already been imposed cannot change this result. See Jenkins v. State, 444 So. 2d 947 (Fla.1984); Shaffer v. State, 446 So. 2d 1156 (Fla. 2d DCA 1984); McGeorge v. State, 386 So. 2d 29 (Fla. 5th DCA 1980); § 27.56(1), Fia. Stat.(1983).
The imposition of the aforesaid restitution costs, appellate costs, and all other costs as contained in the sentence under review is therefore stricken; as to the nominal costs discussed above, however, this affirmance shall be without prejudice to the state to tax such costs against the defendant after a proper notice and hearing. In all other respects, the sentence under review is affirmed.
Affirmed as modified.
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Citator
Cited By (15 total)
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Bull v. State, 548 So. 2d 1103 (Fla. 1989)…these costs after the costs had already been imposed cannot change the result” that the costs were unlawfully imposed because they were ordered paid without giving the defendant prior notice and hearing as required by Florida law. Cliburn v. State, 510 So. 2d 1155, 1156 (Fla. 3d DCA 1987). BARKETT and KOGAN, JJ., concur.…
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Hercule v. State, 655 So. 2d 1256 (Fla. 3d DCA 1995)…ently, defendant urges that he can only be required to make restitution for damage to the exterior of the car, but not for the loss of the missing and unrecovered contents and auto parts. We disagree. First, this court suggested in Clibum v. State, 510 So. 2d 1155 (Fla. 3d DCA 1987), that where the offense at conviction is burglary, a restitution order can properly be entered for property taken from the premises but not recovered. Id. at 1156. Second, in this case the defendant entered into a plea agreement i…
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Kamal Peters v. State, 555 So. 2d 450 (Fla. 4th DCA 1990)…ase is inapposite to Spivey v. State, 531 So. 2d 965 (Fla.1988), in which stipulated accomplices to a robbery, acting in concert, were held responsible jointly and severally for the victim’s losses. This case more closely resembles Cliburn v. State, 510 So. 2d 1155 (Fla. 3d DCA 1987), in which the court held that the defendant there could only be assessed restitution to the extent the evidence showed he was criminally involved in the burglary in that case, or to the extent he received unrecovered property stol…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. Illinois, 351 U.S. 12 (U.S. 1956)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- J.S.H. v. State, 472 So. 2d 737 (Fla. 1985)
- McGEORGE v. State, 386 So. 2d 29 (Fla. 5th DCA 1980)
- K.M.C. v. State, 485 So. 2d 1296 (Fla. 1st DCA 1986)
- Shaffer v. State, 446 So. 2d 1156 (Fla. 2d DCA 1984)
- Roberts v. State, 467 So. 2d 439 (Fla. 5th DCA 1985)
- Stanley v. State, 459 So. 2d 494 (Fla. 4th DCA 1984)
- Harnick v. Harnick, 444 So. 2d 87 (Fla. 3d DCA 1984)