ROGER ALLEN SHIELDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in setting restitution amount without a hearing and without determining the defendant's ability to pay as required by statute.
A trial court must hold a hearing and determine a defendant's ability to pay before imposing a specific restitution amount under section 775.089(6).
[1] A trial court must conduct a hearing and determine a defendant's ability to pay before imposing a specific restitution amount under section 775.089(6), Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“trial court erred in imposing restitution without prior determination as to appellant's ability to pay and consideration of other criteria of section 775.089(6)”
Court cited Amison v. State for the proposition that restitution cannot be imposed without considering statutory factors
Appellant pleaded nolo contendere to arson in exchange for a guidelines sentence with probation, and the trial court imposed restitution as a probatio…
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ALTENBERND, Judge.
Appellant pleaded nolo contendere to the charge of arson in exchange for a guidelines sentence, which was to include probation. At sentencing and without objection, the trial court included restitution to the victims as a condition of probation. The amount of restitution was to be determined at a later hearing. After appellant filed his notice of appeal and without a hearing, the trial court entered an order which set the amount of restitution. Appellant contends this was error, citing section 775.089(6), Florida Statutes (1987); Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987) (trial court erred in imposing restitution without prior 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 hearing to make that determination). The state concedes error. Accordingly, we reverse that part of appellant’s probation order regarding restitution, and remand for a hearing in accordance with section 775.089(6).
Reversed in part and remanded for proceedings consistent herewith.
RYDER, A.C.J., and BOARDMAN, EDWARD F., (Ret.) J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Leon v. Leon, 616 So. 2d 633 (Fla. 4th DCA 1993)…e error so long as (1) there is an immediate need for support tantamount to an emergency; (2) the temporary award is not per se unreasonable; and (3) the trial judge sets another hearing at a later date to finish testimony, see Priestes v. Priestes, 549 So. 2d 246 (Fla. 2d DCA1989), none of those criteria are present in this order. Here, the wife was denied any opportunity to present her motion by a time allotment. This is error. Weasel v. Weasel, 421 So. 2d 749 (Fla. 4th DCA1982). For the same reason, we r…
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Nishman v. Stein (Fla. 2d DCA 2020)…ce is pending, not to decide the final outcome . . . . Contested temporary relief hearings are not and should not be as lengthy as contested final hearings. The parties need to obtain temporary relief expeditiously."); see also Priestes v. Priestes, 549 So. 2d 246, 247 (Fla. 2d DCA 1989) (finding no reversible error where trial court entered order of temporary support in favor of the wife without giving the husband the opportunity to present his case based on the wife being without any kind of support and in…
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Greene v. Greene, 691 So. 2d 59 (Fla. 4th DCA 1997)…wife should be without prejudice to the husband requesting a supplemental hearing, to present the balance of the evidence he claims was precluded because of insufficient time at the hearing that resulted in the appealed order. Priestes v. Priestes, 549 So. 2d 246 (Fla. 2d DCA 1989). If such a hearing results in a reduction of husband’s temporary support obligations, he can then be credited for excess amounts already paid. Priestes at 247.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Amison v. State, 504 So. 2d 473 (Fla. 2d DCA 1987)
- Loeb v. State, 387 So. 2d 433 (Fla. 3d DCA 1980)
- State v. Diers, 532 So. 2d 1271 (Fla. 1988)
- State v. Diers, 517 So. 2d 788 (Fla. 2d DCA 1988)