STATE OF FLORIDA, APPELLANT,
v.
GEORGE FRANKLIN BUTZ, APPELLEE
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The State appealed a trial court's denial of its post-sentencing motion to impose restitution due to lack of jurisdiction. The appellate court affirmed, holding that restitution imposed after sentencing constitutes a modification of a legal sentence, not correction of an illegal one, and therefore must be requested within sixty days of sentencing.
The failure to include restitution results in an incomplete, not illegal, sentence, subject to modification only within sixty days of sentencing. Because the State's motion was not timely brought to the trial court's attention within the sixty-day window, the trial court lacked jurisdiction to modify the sentence to add restitution.
[1] A trial court is required to order restitution to the victim for damage or loss caused by the defendant's offense, unless it finds reasons not to order such restitution.
[2] Restitution ordered under Section 775.089, Florida Statutes, shall be a condition of probation.
Previewing 2 of 6 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“Florida Rule of Criminal Procedure 3.800(a) permits a court to correct an illegal sentence at any time but does not authorize the increase of a legal sentence.”
Establishes the distinction between illegal sentences (correctable anytime) and legal sentences (subject to time limitations).
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Join FLexlaw to unlock all legal intelligenceButz was convicted by jury of aggravated battery and trespassing and sentenced to four and one-half years incarceration. The trial court file containe…
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POLEN, Judge.
The state timely seeks review of the trial court’s denial, on the grounds of lack of jurisdiction, of the state’s post-trial and post-sentencing hearing, rule 3.800 motion requesting the imposition of restitution. We affirm.
After a jury convicted Butz of aggravated battery and trespassing, the trial court sentenced him to a term of four and one-half years incarceration. Although the court file contained a victim impact statement showing doctor bills exceeding $150,-000, the trial court neither ordered restitution pursuant to section 775.089, Florida Statutes (1989), nor stated its reasons for not so doing. The state failed to request such either in the presentence investigation or at the sentencing hearing. Within sixty days subsequent to the sentencing hearing, the state filed a motion to determine restitution. The hearing on the motion was not held until after the sixty-day period, at which time the trial court denied imposition of restitution based on a lack of jurisdiction.
Florida Rule of Criminal Procedure 3.800(a) permits a court to correct an illegal sentence at any time but does not authorize the increase of a legal sentence. State v. Whitfield, 487 So. 2d 1045 (Fla.1986). Rule 3.800(b) permits reduction or modification of a legal sentence within sixty days after imposition of such. Therefore, the question is whether the failure to impose restitution as part of a sentence results in an illegal sentence which would be correctible at any time, or merely incomplete, which would be correctible only within the sixty-day window.
We agree with our sister court’s characterization of this type of sentence as incomplete and subject to modification. See Grice v. State, 528 So. 2d 1347, 1350 (Fla. 1st DCA 1988). We also agree that any “modification” through the addition of restitution costs is not sentence enhancement. Id. at 1350. Given the facts of this case, we cannot say that failure to include restitution resulted in an illegal sentence. Therefore, only if brought to the court’s attention within the sixty-day window would the court have jurisdiction to hear the matter. In that the matter was not timely brought to the judge's attention, the sixty-day period which would have allowed the court to make a sentencing determination concerning restitution had expired. Thereafter, the court was without jurisdiction to hear the matter. AFFIRMED.
HERSEY, C.J., and RIVKIND, LEONARD, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. MacLEOD, 600 So. 2d 1096 (Fla. 1992)…the [S]tate pursuant to [the statute and rule]"), review denied, 587 So. 2d 1329 (Fla.1991); Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991) (characterizing sentence not imposing restitution as "incomplete” but not "illegal”); State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990) (trial judge’s order failing to include restitution, without stating its reasons for not doing so, does not result in illegal sentence); Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988) (failure to order restitution results in…
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State v. Martin, 577 So. 2d 689 (Fla. 1st DCA 1991)…e restitution did not make the sentence an illegal one, which would be subject to correction at any time. Instead, the failure to order restitution must be brought to the attention of the trial court and corrected within 60 days. See, State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990); Rule 3.800(a), Florida Rules of Criminal Procedure. The failure to impose restitution does not result in an illegal sentence, only an incomplete sentence which is subject to modification. See, Butz and Grice v. State, 528 So. 2d…
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Weaver v. State, 588 So. 2d 53 (Fla. 3d DCA 1991)…e than sixty days had passed between the sentencing hearing and the second restitution hearing, the trial court’s jurisdiction to modify the defendant’s sentence had elapsed. See McLaughlin v. State, 573 So. 2d 419 (Fla. 2d DCA 1991); State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990). Accordingly, we vacate the trial court’s order rendered August 16, 1990, increasing the amount of restitution.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Schomers v. State, 528 So. 2d 1347 (Fla. 2d DCA 1988)
- Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988)