MOTASHA GODWIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that contemporaneous convictions are insufficient to establish habitual offender status and that the defendant bears the burden of proving inability to pay restitution.
The defendant was convicted of burglary and aggravated battery. The trial court sentenced her as a habitual offender based on two convictions rendered…
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SCHEB, Acting Chief Judge.
The defendant, Motasha Godwin, was found guilty of committing burglary of a conveyance and aggravated battery on October 18, 1989. On appeal, she raises two points relating to her sentence.
First, she contends that the court erred in sentencing her as a habitual offender. § 775.084, Fla.Stat. (1989). She points to the fact that the trial court based its judgment on two convictions rendered on the same day as fulfilling the statutory requirement of two prior convictions necessary to establish that the defendant is a habitual offender. She correctly points out that contemporaneous convictions are insufficient to fulfill such statutory requirement. Marion v. State, 586 So. 2d 67 (Fla. 2d DCA 1991); Troup v. State, 574 So. 2d 271 (Fla. 2d DCA 1991); Walker v. State, 567 So. 2d 546 (Fla. 2d DCA 1990).
Second, she contends the trial court erred by ordering her to make restitution to her victim without considering her ability to pay. We find no merit to her second contention. It is the defendant’s responsibility to establish an inability to make restitution. § 775.089(7), Fla.Stat. (1989); Goble v. State, 568 So. 2d 91 (Fla. 1st DCA 1990); Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987). At the sentencing hearing, the defendant made no showing of her inability to make restitution.
Accordingly, we affirm the defendant's convictions and the requirement that she make restitution. We vacate the sentence insofar as it adjudicated the defendant a habitual offender, and we remand to the trial court for sentencing the defendant within the sentencing guidelines.
RYDER and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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O'Conner v. State, 587 So. 2d 596 (Fla. 2d DCA 1991)…. 1st DCA 1991) (On Rehearing). Mr. O’Conner also argues that the trial court did not properly consider his evidence concerning financial resources. It is incumbent upon the defendant to establish an inability to make restitution. Godwin v. State, 586 So. 2d 1257 (Fla. 2d DCA 1991). At a hearing prior to the final restitution hearing, Mr. O’Conner had come forward with evidence of his financial inability. At the final restitution hearing, which Mr. O’Conner did not attend, the trial court deferred any consid…
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Williams v. State, 591 So. 2d 664 (Fla. 2d DCA 1991)…e note that since the defendant neither objected to being required to make restitution nor offered any evidence of his -inability to pay, the trial court did not err in its order of restitution. Section 775.089(7), Fla.Stat. (1989); Godwin v. State, 586 So. 2d 1257 (Fla. 2d DCA 1991). We reverse and remand for a new trial on the two counts of manslaughter and one count of conspiracy to commit aggravated battery. See Fla.R.Crim.P. 3.640(a). RYDER and LEHAN, JJ., concur.…
Authorities Cited
- Romerio Latee Walker v. State, 567 So. 2d 546 (Fla. 2d DCA 1990)
- Spivey v. State, 501 So. 2d 698 (Fla. 2d DCA 1987)
- Goble v. State, 568 So. 2d 91 (Fla. 1st DCA 1990)
- Troup v. State, 574 So. 2d 271 (Fla. 2d DCA 1991)
- Marion v. State, 586 So. 2d 67 (Fla. 2d DCA 1991)