THOMAS BUTTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Butts appealed his restitution sentence, claiming the trial court failed to determine his ability to pay before imposing restitution. The Florida Fifth District Court of Appeal affirmed, holding that the trial court properly considered Butts's ability to pay and that Butts failed to meet his burden of demonstrating inability to pay.
The court affirmed the restitution sentence, holding that the trial court properly considered the defendant's ability to pay under Florida Statutes section 775.089(6), and the defendant failed to meet his burden of demonstrating inability to pay.
[1] A sentencing judge must consider a defendant's ability to pay before ordering restitution.
[2] The burden of demonstrating present and future financial resources and financial needs is on the defendant when restitution is ordered.
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Join FLexlaw to unlock all legal intelligence“The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his dependents and such other factors which it deems appropriate.”
Statutory requirement for judges to consider ability to pay when ordering restitution
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Join FLexlaw to unlock all legal intelligenceThomas Butts was sentenced to restitution by the trial court. Evidence at sentencing indicated that Butts had future earning ability, with testimony e…
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COBB, Judge.
The appellant, Thomas Butts, has alleged on appeal that the imposition of restitution, without a concomitant determination of ability to pay, was reversible error. In the past, this court has held that section 775.-089(6), Florida Statutes (1989), requires a sentencing judge to determine a defendant’s ability to pay prior to ordering a defendant to make restitution. Leyba v. State, 520 So. 2d 705 (Fla. 5th DCA 1988). Section 775.089(6) reads:
(6) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his dependents and such other factors which it deems appropriate.
Section 775.089(7) reads in pertinent part:
(7) ... The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his dependents is on the defendant.
It is important to note that a defendant must object to the proposed order of restitution and present evidence of his or her inability to pay at the time the restitution is ordered; otherwise, a defendant will waive this argument. See Spivey v. State, 531 So. 2d 965, 967, n. 2 (Fla.1988); Williams v. State, 565 So. 2d 849, 851 (Fla. 1st DCA 1990); Dickens v. State, 556 So. 2d 782, 785 (Fla. 2d DCA 1990); Abbott v. State, 543 So. 2d 411, 413 (Fla. 1st DCA 1989); Hamrick v. State, 532 So. 2d 71, 72 (Fla. 1st DCA 1988); Morgan v. State, 491 So. 2d 326, 327 (Fla. 1st DCA 1986). In short, a defendant must affirmatively assert his rights under section 775.089(6), when he is given the opportunity to do so.
In the instant case, the state correctly points out that the trial court did in fact consider the defendant’s ability to pay and that the defendant clearly failed to meet the burden placed upon him. The evidence indicates that Butts will attempt to work in the service industry at $7.00 to $8.00 per hour (40-hour week). Notwithstanding the defendant’s age, the elicited testimony establishes that the defendant has a future earning ability.
Accordingly, the judgment and sentence are affirmed.
AFFIRMED.
DAUKSCH and COWART, JJ., concur.
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Citator
Cited By (14 total)
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Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996)…ing the amount of the loss sustained, and upon the defendant the burden of demonstrating his financial circumstances. See Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994); Cheatham v. State, 593 So. 2d 270 (Fla. 4th DCA 1992). In Butts v. State, 575 So. 2d 1379 (Fla. 5th DCA 1991), the fifth district held that a defendant must object to a proposed order of restitution and present evidence of his inability to pay at the time restitution is ordered; otherwise, the issue of failure to determine ability to pay…
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Sims v. State, 637 So. 2d 21 (Fla. 4th DCA 1994)…Stat. (1993); Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994); Padilla v. State, 622 So. 2d 160 (Fla. 4th DCA 1993); Driggers v. State, 622 So. 2d 1374 (Fla. 5th DCA 1993); Cheat-ham v. State, 593 So. 2d 270 (Fla. 4th DCA 1992); Butts v. State, 575 So. 2d 1379 (Fla. 5th DCA 1991); Goble v. State, 568 So. 2d 91 (Fla. 1st DCA 1990). Because defendant did not object to the imposition of restitution or present evidence on his inability to pay, any error was waived. Massie v. State, 635 So. 2d 110 (Fla. 2d DCA…
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Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994)…defendant here does not challenge the sufficiency of the state’s proof of the amount of the loss. Rather, he argues that the court failed to consider his present and future financial condition as it relates to his ability to pay. In Butts v. State, 575 So. 2d 1379 (Fla. 5th DCA 1991), this court held that a defendant must object to a proposed order of restitution and present evidence of his inability to pay at the time restitution is ordered. Otherwise, the issue of failure to determine ability to pay will be…
Previewing 3 of 14 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, 531 So. 2d 965 (Fla. 1988)
- State v. Prusinsky, 543 So. 2d 411 (Fla. 4th DCA 1989)
- Morgan v. State, 491 So. 2d 326 (Fla. 1st DCA 1986)
- State v. Leija, 520 So. 2d 705 (Fla. 5th DCA 1988)
- Dickens v. State, 556 So. 2d 782 (Fla. 2d DCA 1990)
- Hamrick v. State, 532 So. 2d 71 (Fla. 1st DCA 1988)
- Fe A. Penn v. C & S Fam. Credit, Inc., 565 So. 2d 849 (Fla. 1st DCA 1990)