FRANK OLIVERIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution imposed as part of a sentence requires a determination of statutory factors, which was absent here.
Appellant was convicted of burglary and sentenced, including restitution. Appellant appealed the conviction and sentence.…
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PER CURIAM.
This is a timely appeal from a judgment of conviction and sentence of three and one-half years’ imprisonment, pursuant to the sentencing guidelines, for the offense of burglary of a structure.
Appellant poses three points on appeal, only one of which requires reversal. The first point presented relates to the court’s failure to instruct the jury on the underlying offense of the burglary. We believe the court’s instruction was adequate. But, even if it were not, appellant waived the error by failing to object to the court’s charge. Fla.R.Civ.P. 3.390(d); Castor v. State, 365 So. 2d 701 (Fla.1978).
The second point relied upon by appellant relates to the trial court’s failure to sustain appellant’s objection to the state’s alleged comment on appellant’s silence. We agree with the state that the comment was not improper and with the argument that it was, in any event, invited by appellant’s cross-examination of state witnesses.
Finally, the sentence imposed restitution upon appellant without a determination of the factors set forth in section 775.-089(6) and (7), Florida Statutes, i.e., the loss to the victim, the defendant’s present and future financial resources, etc. This is required by both statute and case law. Mounds v. State, 526 So. 2d 1084 (Fla. 4th DCA 1988).
Accordingly, the judgment of conviction and sentence are affirmed except for that aspect of the sentence relating to restitu tion, which is reversed and remanded for further appropriate consideration.
GLICKSTEIN, C.J., and DOWNEY and POLEN, JJ., concur.
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Cheatham v. State, 593 So. 2d 270 (Fla. 4th DCA 1992)…age. Nor can it be concluded from the record on appeal that the trial court failed to hold a hearing to determine the defendant’s financial circumstances as was the case in Dominique v. State, 590 So. 2d 1059 (Fla. 4th DCA 1991); Oliverio v. State, 583 So. 2d 412 (Fla. 4th DCA 1991); Mounds v. State, 526 So. 2d 1084 (Fla. 4th DCA 1988); and Snell v. State, 502 So. 2d 489 (Fla. 4th DCA), rev. dismissed, 509 So. 2d 1119 (1987). In the instant case, the record reflects the trial court’s consideration of the [*2…
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Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992)…m, the financial resources of the defendant, and the present or potential future financial needs of the defendant and his dependents. Pellot v. State, 582 So. 2d 124 (Fla. 4th DCA); rev. denied, 591 So. 2d 183 (Fla.1991); see also Oliverio v. State, 583 So. 2d 412 (Fla. 4th DCA 1991) (court reversed part of defendant’s sentence relating to restitution because the trial court failed to make a determination of the factors set forth in section 775.089(6) and (7), i.e., the loss to the victim and the defendant’s…
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Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992)…eal by timely objection in the trial court, but alleges that the error is fundamental. We disagree. Failure to define the underlying offense when instructing a jury on burglary does not constitute fundamental reversible error. See Oliverio v. State, 583 So. 2d 412 (Fla.1991). Appellant’s fourth point concerns the assessment of a public defender fee. We agree that the trial court erred in imposing this fee without the required notice and hearing mandated by section 27.56, Florida Statutes (1989). In re R.B.,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Am. Sav. & Loan Ass'n v. Levy, 526 So. 2d 1084 (Fla. 4th DCA 1988)
- Odzer v. Wilson, 526 So. 2d 1084 (Fla. 4th DCA 1988)