STATE OF FLORIDA, APPELLANT,
v.
RAYMOND ERIC DIERS, APPELLEE
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The State appealed a downward departure from sentencing guidelines in a youthful offender case, while the defendant cross-appealed the restitution order and denial of a motion for acquittal. The court held that the state lacks statutory authority to appeal downward departures under the Youthful Offender Act, dismissed the state's appeal, affirmed the conviction and sentence, but remanded for determination of the proper restitution amount.
The State lacks statutory authority to appeal downward departures under the Youthful Offender Act; the motion for judgment of acquittal was properly denied based on substantial competent evidence; and the trial court must determine the specific amount of restitution on remand.
[1] The state has no statutory authority to appeal a sentence imposed under the youthful offender act that is less than the recommended guidelines.
[2] The youthful offender act is more specific than the guidelines scheme and directs that its penalties are to be imposed in lieu of other criminal penalties authorized by l…
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Join FLexlaw to unlock all legal intelligence“the Y.O.A. is more specific than the guidelines scheme and directs that its penalties are to be imposed "[i]n lieu of other . criminal penalties authorized by law."”
Establishes the statutory basis for rejecting state authority to appeal downward departures under the Youthful Offender Act
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Join FLexlaw to unlock all legal intelligenceRaymond Diers was convicted of aggravated battery and sentenced under the Youthful Offender Act to four years in prison followed by two years of commu…
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FRANK, Judge.
Raymond Diers was convicted of aggravated battery and sentenced, pursuant to the youthful offender act (Y.O.A.), to four years in prison followed by two years of community control. He was also ordered to pay restitution to the victim of his attack in the amount of the hospital bills. His sentence was below the recommended guidelines range of five and one-half to seven years. The state has appealed from the downward departure and the defendant has cross-appealed from the restitution order as well as from the court’s denial of his motion for judgment of acquittal.
We deal first with the state’s appeal and find that it must be dismissed on the ground that there exists no statutory authority for an appeal by the state when the court imposes a sentence less than the guidelines recommendation pursuant to the Y.O.A. In reaching this decision we have relied upon the analysis and reasoning expressed by our sister court in State v. Weston, 510 So. 2d 1001 (Fla. 3d DCA 1987). Significant considerations impel us to this conclusion.
First, the Y.O.A. is more specific than the guidelines scheme and directs that its penalties are to be imposed “[i]n lieu of other . criminal penalties authorized by law.” § 958.04(2), Fla.Stat. (1985). Second, the legislative amendment to the Y.O.A. specifically provides for a defendant’s appeal from an upward departure from the guidelines but is silent oh both downward departures and the state’s right to appeal. These significant statutory provisions are obviously intended to implement the expressed rehabilitative policy of the Y.O.A.: “improving] the chances of correction and successful return to the community” of those who have been adjudged youthful offenders. § 958.021, Fla.Stat. (1985).
We, as did the third district in Weston and again in State v. Odom, 514 So. 2d 424 (Fla. 3d DCA 1987), certify that our decision conflicts with the fifth district’s opinion in State v. Evans, 503 So. 2d 985 (Fla. 5th DCA 1987), which allowed a state appeal from a Y.O.A. sentence because the judge had failed to explain the guidelines departure in writing.
Our review of the record in connection with the defendant’s cross-appeal discloses substantial competent evidence supporting the state’s theory that the defendant used unjustified deadly force against the victim and rebuts the defendant’s theory of self-defense. The motion for judgment of acquittal was properly denied.
The judge erred, however, in ordering Diers to pay the victim’s hospital bills without specifying the total expenses incurred from this incident, a sum that is nowhere apparent from the record. Although Diers failed to object to the order requiring that he pay restitution—an omission that would preclude appellate review of other issues, see Spivey v. State, 501 So. 2d 698 (Fla. 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 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 is affirmed, and the case is remanded for a restitution hearing. In all other respects the sentence is affirmed.
CAMPBELL, A.C.J., and HALL, J., concur.
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State v. Diers, 532 So. 2d 1271 (Fla. 1988)…McDONALD, Justice. We review State v. Diers, 517 So. 2d 788 (Fla. 2d DCA 1988), because of conflict with State v. Evans, 503 So. 2d 985 (Fla. 5th DCA 1987). We have jurisdiction pursuant to article V, section 8(b)(8) of the state constitution. Diers held that the state could not appeal the sentence of a defe…
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State v. Nealy, 532 So. 2d 1117 (Fla. 2d DCA 1988)…e downward departure Nealy would have to be sentenced as an adult within the presumptive guidelines range of seven to nine years. . In passing, I would note that the sentencing order which was the subject of this court’s decision in State v. Diers, 517 So. 2d 788 (Fla. 2d DCA 1988), cited by the majority in support of its opinion, preceded the effective date of the amendment to section 958.04(3). . Although Wiedeman was decided before the amendment to the statute, the amendment does not affect the result re…1 / 2
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Shields v. State, 549 So. 2d 246 (Fla. 2d DCA 1989)…determination as to appellant’s ability to pay and consideration of other criteria of section 775.089(6)); Loeb v. State, 387 So. 2d 433 (Fla. 3d DCA 1980) (trial court may not modify an order while that order is being appealed); and State v. Diets, 517 So. 2d 788 (Fla. 2d DCA), aff'd on other grounds, 532 So. 2d 1271 (Fla.1988) (failure to object to order requiring appellant to pay restitution did not preclude appellate review where trial court did not determine the amount of restitution; cause remanded for…
Previewing 3 of 5 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)
- Bostic v. State, 504 So. 2d 794 (Fla. 2d DCA 1987)
- State v. Weston, 510 So. 2d 1001 (Fla. 3d DCA 1987)
- State v. Evans, 503 So. 2d 985 (Fla. 5th DCA 1987)
- Shipley v. State, 512 So. 2d 1135 (Fla. 2d DCA 1987)
- State v. Loquacious Odom, 514 So. 2d 424 (Fla. 3d DCA 1987)