JOHN WILLIAM BARRETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction for grand theft but remanded to correct the written probation order to conform to the oral pronouncement regarding probationary term and restitution, and to require the trial court rather than the probation officer to determine restitution amount.
A trial court must issue a corrected probation order conforming to its oral pronouncement and must itself determine the restitution amount rather than delegating that determination to a probation officer.
[1] A trial court must determine the amount of restitution and may not delegate that determination to a probation officer.
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Join FLexlaw to unlock all legal intelligenceBarrett was convicted of grand theft and sentenced to probation with a special condition of nine months county jail, but the written probation order f…
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SHIVERS, Chief Judge.
The appellant/defendant appeals his conviction and sentence of grand theft, raising three arguments: (1) that the trial court erroneously denied his motion for mistrial; (2) that the written probation order fails to conform to the trial court’s oral pronounce ment with regard to probationary term and amount of restitution; and (3) that the trial court erred in delegating the determination of amount of restitution to appellant’s probation officer.
We affirm the first issue, finding that the comment made by the prosecutor in the instant case, even if erroneous, was not so prejudicial as to vitiate the entire trial or to deprive appellant of a fair trial, especially when weighed against the strong evidence of guilt which was presented by the State. Buenoano v. State, 527 So. 2d 194 (Fla.1988); Duest v. State, 462 So. 2d 446 (Fla. 1985).
We remand the written probation order, however, with instructions that the trial court issue a new order changing the term of probation to three years, with the special condition that appellant serve nine months in county jail, so as to conform to the oral pronouncement made at the sentencing hearing. Brammer v. State, 554 So. 2d 671 (Fla. 2d DCA 1990).
On remand, the trial court must also determine the amount of restitution that appellant will be required to pay, and amend the order of probation accordingly. Calhoun v. State, 546 So. 2d 1194 (Fla. 1st DCA 1988).
SMITH and MINER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991)…of the amount of restitution is a non-delegable judicial responsibility, as is the determination of the defendant’s ability to pay, i.e. by establishing a rate of payment. Ballance v. State, 447 So. 2d 974, 976 (Fla. 1st DCA 1984); Barrett v. State, 573 So. 2d 184 (Fla. 1st DCA 1991). The conditions of probation challenged by Ashe are therefore reversed, and the case remanded for determination of the amount of restitution, and amendment of the probation order accordingly. As for the special condition of paym…
Authorities Cited
- Duest v. State, 462 So. 2d 446 (Fla. 1985)
- Judias v. Buenoano, 527 So. 2d 194 (Fla. 1988)
- Calhoun v. State, 546 So. 2d 1194 (Fla. 1st DCA 1989)
- Brammer v. State, 554 So. 2d 671 (Fla. 2d DCA 1990)