CHERYL SHIPLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cheryl Shipley appeals her convictions for crimes occurring in 1982 and 1985, challenging the trial court's sentencing procedures regarding restitution, post-conviction costs, and community service. The court finds errors in the delegation of restitution determination and the imposition of costs without proper notice, but upholds the community service requirement.
The trial court erred in delegating restitution determination to a probation officer and in imposing costs without proper notice; both matters are remanded for a hearing. However, the community service requirement is affirmed because Shipley failed to contemporaneously object to it at trial, foreclosing appellate review on that issue.
[1] A trial court errs by delegating the determination of restitution amounts to a probation officer.
[2] A trial court must provide notice and conduct a hearing before imposing post-conviction costs.
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“The trial court erred; we remand for the conduct of a hearing to permit the trial court an opportunity to fulfill its obligation to determine the amount to be restituted.”
Establishes that restitution determination is a non-delegable judicial duty that cannot be delegated to a probation officer
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Join FLexlaw to unlock all legal intelligenceCheryl Shipley was convicted of crimes occurring in 1982 and 1985. At sentencing, the trial court delegated to a probation officer the duty to determi…
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FRANK, Judge.
Cheryl Shipley was convicted for the commission of crimes occurring in 1982 and 1985. She claims the trial court committed two errors at the sentencing stage. First, she disputes the trial court’s delegation to a probation officer of the, duty to determine the appropriate amount of resti tution. The trial court erred; we remand for the conduct of a hearing to permit the trial court an opportunity to fulfill its obligation to determine the amount to be resti-tuted. Williams v. State, 507 So. 2d 1171 (Fla. 2d DCA 1987); Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987).
Second, Shipley asserts the trial court erred in the manner in which it treated posirconvietion costs.
The trial court assessed costs pursuant to sections 960.20 and 943.25(4), Florida Statutes (1985).
The record, however, does not disclose that Shipley was given notice that costs would be imposed prior to the sentencing hearing. Nor did the trial court mention such costs at the sentencing hearing.
Therefore, their imposition was improper. Sescon v. State, 506 So. 2d 45 (Fla. 2d DCA 1987); Jenkins v. State, 444 So. 2d 947 (Fla.1984).
We find no indication that the affidavit of insolvency executed by Shipley included a waiver of the notice. Cf. Dailey v. State, 501 So. 2d 15 (Fla. 2d DCA 1986). The costs are stricken without prejudice to the state to seek their reassessment upon notice and hearing. Odom v. State, 507 So. 2d 174 (Fla. 2d DCA 1987).
In contrast to the costs assessed against Shipley pursuant to sections 960.20 and 943.25(4), the trial court declared Ship-ley indigent and ordered her to perform 80 hours of community service in lieu of costs, an alternative that was permitted by section 27.3455, Florida Statutes (1985).1 Shipley contends, in spite of the absence of a contemporaneous objection, that community service was wrongfully imposed because she did not have notice of that consequence. Absent an objection, a challenge to community service is foreclosed on appeal. Henriquez v. State, 513 So. 2d 1285 (Fla. 2d DCA 1987). Cf. Sescon.
We note our conflict with Outar v. State, 508 So. 2d 1311 (Fla. 4th DCA 1987), and Harris v. State, 498 So. 2d 1371 (Fla. 1st DCA 1986).
We affirm that aspect of the trial court’s order. We remand for proceedings consistent with this opinion.
CAMPBELL, A.C.J., and LEHAN, J., concur. . The statute has been amended to delete the provision allowing community service to be imposed in lieu of costs. § 27.3455, Fla.Stat. (Supp.1986).
Cases With Similar Vibessemantic neighbors from the corpus
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Shipley v. State, 528 So. 2d 902 (Fla. 1988)…SHAW, Justice. We have for review Shipley v. State, 512 So. 2d 1135 (Fla. 2d DCA 1987), in which the district court certified conflict with Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987), and Harris v. State, 498 So. 2d 1371 (Fla. 1st DCA 1986). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We disapprove…
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State v. Diers, 517 So. 2d 788 (Fla. 2d DCA 1988)…2d DCA 1987),—we have remanded matters of this kind to the trial court when a determination of the amount of restitution has not been made by the sentencing judge. Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987). As we stated in Shipley v. State, 512 So. 2d 1135 (Fla. 2d DCA 1987), it is the trial court’s obligation [*790] to fix the amount to be restituted and we remand for the conduct of a hearing for it to make that determination. Accordingly, the state’s appeal is dismissed, the judgment of conviction…
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Hamrick v. State, 532 So. 2d 71 (Fla. 1st DCA 1988)…ct amount of restitution. We agree. Section 948.03(l)(e), Florida Statutes (1987), clearly provides that the amount of restitution is “to be determined by the court.” See also McCaskill v. State, 520 So. 2d 664 (Fla. 1st DCA 1988); Shipley v. State, 512 So. 2d 1135 (Fla. 2d DCA 1987), approved as to restitution, disapproved on other grounds, 528 So. 2d 902 (Fla.1988); and James v. State, 499 So. 2d 24 (Fla. 1st DCA 1986). We therefore reverse the order of restitution in part and remand with directions that t…
Authorities Cited (11 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Sescon v. State, 506 So. 2d 45 (Fla. 2d DCA 1987)
- Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987)
- Alphonso Harris v. State, 498 So. 2d 1371 (Fla. 1st DCA 1986)
- Henriquez v. State, 513 So. 2d 1285 (Fla. 2d DCA 1987)
- Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)
- Alexander v. Adams, 501 So. 2d 15 (Fla. 4th DCA 1986)
- Dailey v. State, 501 So. 2d 15 (Fla. 2d DCA 1986)
- Williams v. State, 507 So. 2d 1171 (Fla. 2d DCA 1987)
- McINROY v. McINROY, 507 So. 2d 174 (Fla. 1st DCA 1987)