RICHARD CHRISTOPHER ASHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Ashe appealed his sentencing for multiple felonies, challenging the trial court's delegation of restitution and cost payment determinations to a probation officer and the imposition of a written probation condition not announced at sentencing. The court affirmed the sentence structure but reversed the delegated probation conditions, holding that determining restitution amounts and payment schedules are non-delegable judicial functions.
The court affirmed the sentence structure but reversed the probation conditions. The determination of restitution amounts and payment schedules are non-delegable judicial responsibilities that cannot be assigned to a probation officer. The written probation order must conform to the oral pronouncement at sentencing, and conditions not announced orally cannot be imposed in the written order.
[1] A trial court improperly delegates judicial functions when it allows a probation officer to determine the amount of restitution.
[2] A trial court improperly delegates judicial functions when it allows a probation officer to set a payment schedule for restitution.
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Join FLexlaw to unlock all legal intelligence“The determination 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.”
Establishes that restitution amounts and payment schedules are core judicial functions that cannot be delegated to probation officers.
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Join FLexlaw to unlock all legal intelligenceAshe pleaded nolo contendere to grand theft, burglary of a conveyance, armed robbery with a firearm, possession of a short-barrelled shotgun, and two …
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PER CURIAM.
Richard Christopher Ashe has appealed the sentence imposed following his plea of nolo contendere to grand theft, burglary of a conveyance, armed robbery with a firearm, possession of a short-barrelled shotgun, and two counts of battery on a law enforcement officer. We affirm in part and reverse in part.
Following the entry of his plea, Ashe was sentenced to 12 years incarceration followed by 10 years probation, and four 5-year terms of incarceration, all to run concurrently. At the sentencing hearing, the trial court imposed payment of costs and restitution as conditions of probation. Determination of the amount of restitution was left to the probation officer, the court to intervene only if the parties could not agree on the amount. Costs were to be paid under “a payment schedule as directed by the probation officer,” and restitution was similarly to be paid “as directed by the probation officer.” Another condition, not orally imposed at the hearing, directed the payment of $1.00 per month to a local program.
On appeal, Ashe alleges that the trial court improperly delegated judicial functions by allowing the probation officer to set a payment schedule and determine the amount of restitution. He also alleges that there is no statutory authorization for a sentence in which a period of incarceration is followed by a period of probation with no incarceration withheld. The latter issue has been decided adversely to Ashe in Glass v. State, 574 So. 2d 1099 (Fla.1991), and we therefore affirm as to that issue.
However, as to the conditions of probation challenged by Ashe, we must reverse. While Ashe did not object to the delegations of authority by the trial judge, the failure to object does not confer on others the authority to violate the law, i.e. to delegate to a probation officer a purely judicial function. Larson v. State, 572 So. 2d 1368, 1371 (Fla.1991). The determination 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 payment of $1.00 to the local fund, this condition was not orally imposed at the hearing. The written order of probation must conform to the oral pronouncement. Bryant v. State, 577 So. 2d 1372 (Fla. 1st DCA 1991). The state’s argument that Ashe agreed to let the court impose special conditions at will is without merit. See Larson. Therefore, on remand, the trial court shall conform the written order to the conditions as pronounced at the hearing.
Affirmed in part, reversed in part, and remanded.
JOANOS, C.J., and WIGGINTON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Armstrong v. State, 620 So. 2d 1120 (Fla. 5th DCA 1993)…avoid any suggestion that the probation officer may require appellant to make higher monthly payments. Appellant did not agree to delegate this authority to his probation officer. See Casto v. State, 615 So. 2d 792 (Fla.5th DCA 1993); Ashe v. State, 582 So. 2d 759 (Fla.1st DCA 1991); Williams v. State, 507 So. 2d 1171 (Fla.2d DCA 1987). Additionally, the trial court, in condition 16 of its probation order, required appellant to maintain full-time and part-time employment. We agree with appellant that such a…
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Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994)…nd to set the amount of monthly installment payments may not be delegated to the probation officer, where a dispute requires resolution. Smith v. State, 613 So. 2d 1325 (Fla. 1st DCA 1992), review dismissed, 618 So. 2d 210 (Fla.1993); Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991). On remand, if the parties cannot agree on amounts, a restitution hearing will be necessary. At any such hearing, Allred should not be precluded from demonstrating his present and future financial resources and needs in accordanc…
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Shaddix v. State, 599 So. 2d 269 (Fla. 1st DCA 1992)…tances in Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA), rev. den., 593 So. 2d 1052 (Fla.1991), and Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992). As to a similar discrepancy between verbal and written conditions of probation in Ashe v. State, 582 So. 2d 759, 760 (Fla. 1st DCA 1991), we reversed and remanded the provision for the trial court to conform the written order to the conditions as pronounced at sentencing. We do likewise here. See Johnson v. State, 598 So. 2d 282 (Fla. 1st DCA 1992); Flowers v…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)
- Glass v. State, 574 So. 2d 1099 (Fla. 1991)
- Bryant v. State, 577 So. 2d 1372 (Fla. 1st DCA 1991)
- Barrett v. State, 573 So. 2d 184 (Fla. 1st DCA 1991)