STATE OF FLORIDA, APPELLANT,
v.
CHRISTOPHER D. MARTIN, APPELLEE
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The State of Florida appealed a trial court's order striking a restitution requirement from a probation sentence, arguing the court lacked jurisdiction to do so after the 60-day modification period expired. The appellate court dismissed the appeal for lack of statutory authority, holding that an order striking an allegedly illegal sentence is not appealable by the state.
The state lacks statutory authority to appeal the trial court's order striking the restitution requirement. The order is not appealable under Florida Statutes section 924.07 or Florida Rules of Appellate Procedure Rule 9.140, and certiorari review is not available as an alternative remedy.
[1] A state may not appeal a trial court's order striking a restitution requirement from a sentence if the order does not render the sentence illegal.
[2] A trial court's failure to impose restitution as a condition of probation within the statutory time limit results in an incomplete, not illegal, sentence.
Previewing 2 of 5 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“The failure to impose 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.”
Establishes the distinction between illegal sentences and incomplete sentences, with the latter subject to time limitations
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Join FLexlaw to unlock all legal intelligenceAppellee was placed on probation on November 14, 1989, with the trial court reserving jurisdiction to impose restitution later. On July 16, 1990, the …
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PER CURIAM.
Appellee moves to dismiss this appeal, arguing that there is no statutory authority for the state to take an appeal from the order entered by the trial court.
We agree that dismissal is proper. Appellee was placed on probation on November 14, 1989. In the order of probation, the trial court purported to reserve jurisdiction to later impose restitution as a condition of probation.
On July 16, 1990, the trial court entered an order requiring appellee to make restitution in the amount of $6,208.47.
On November 8, 1990, appel-lee moved to strike the restitution requirement arguing that the trial court was without jurisdiction to modify the sentence as more than sixty days had run since the sentence was imposed.
Rule 3.800(b), Florida Rules of Criminal Procedure.
On February 7, 1991, the trial court granted appel-lee’s motion to strike the restitution requirement and the state filed a timely notice of appeal.
Appellee argues that a court cannot enter a sentencing order when it has been divested of jurisdiction. The failure to impose 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 1347 (Fla. 1st DCA 1988).
That modification, however, must be made within 60 days. Here the trial court properly determined that it was without jurisdiction to enter the order imposing restitution and entered an order to correct the illegal sentence. Because the sentence imposed was an illegal one, it could be corrected at any time.
Rule 3.800(a), Florida Rules of Criminal Procedure.
The order of the trial court which struck the restitution requirement is not an order which may be appealed by the state pursuant to section 924.07, Florida Statutes (1990) or Rule 9.140, Florida Rules of Appellate Procedure. The state’s request for alternative review by certiorari is without merit. No right of review by certiorari exists if no right of appeal exists. Jones v. State, 477 So,2d 566 (Fla.1985).
This appeal is dismissed for lack of jurisdiction.
SHIVERS, C.J., and ALLEN and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Gladfelter v. State, 618 So. 2d 1364 (Fla. 1993)…GRIMES, Justice. We review Gladfelter v. State, 604 So. 2d 929 (Fla. 4th DCA 1992), because of its conflict with State v. Martin, 577 So. 2d 689 (Fla. 1st DCA), review denied, 587 So. 2d 1329 (Fla.1991). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Gladfelter pled guilty to driving while intoxicated causing serious bodily injury and to a violation of pr…
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State v. MacLEOD, 600 So. 2d 1096 (Fla. 1992)…udge has set forth reasons for the denial of restitution. It is so ordered. SHAW, C.J., and McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. . Other district court decisions which are consistent with our holding include State v. Martin, 577 So. 2d 689, 690 (Fla. 1st DCA) (trial court’s order striking previously imposed restitution requirement “is not an order which may be appealed by the [S]tate pursuant to [the statute and rule]"), review denied, 587 So. 2d 1329 (Fla.1991); Dailey v. State, 575…
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Ivory Fairweather v. State, 596 So. 2d 1276 (Fla. 1st DCA 1992)…ation, but the court reserved jurisdiction to set the amount. One year later, on March 18, 1991, the trial court modified Fair-weather’s probation to set the amount of restitution at $1500. Fairweather moved for rehearing, based on State v. Martin, 577 So. 2d 689 (Fla. 1st DCA 1991). In Martin, the trial court placed the appellant on probation on November 14, 1989, and reserved jurisdiction to impose restitution as a condition of that probation. Eight months later, the court entered its order imposing restit…
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
- Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)
- State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990)
- Schomers v. State, 528 So. 2d 1347 (Fla. 2d DCA 1988)
- Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988)