ROBERT O'CONNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed restitution order because trial court ordered restitution for items not alleged in the information without proof of causation and failed to properly consider defendant's evidence of financial inability to pay.
A trial court may not order restitution for items not alleged in the charging information without proof that losses were directly or indirectly caused by the defendant's offenses, and must properly consider the defendant's evidence regarding ability to pay restitution.
[1] Restitution may be ordered only for losses directly or indirectly caused by the offenses charged in the information, not for other missing items lacking proof of causatio…
[2] A defendant must be afforded an opportunity to present evidence of financial inability to pay restitution, which the trial court must consider before imposing restitution…
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Join FLexlaw to unlock all legal intelligenceO'Conner pleaded nolo contendere to grand theft and dealing in stolen property involving three specific stolen items and one specific item dealt in. T…
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PER CURIAM.
Mr. O’Conner appeals the restitution provision of the order withholding adjudication and placing him on probation for grand theft and dealing in stolen property. The information, to which the defendant pleaded nolo contendere, alleged that he stole three specific items and dealt in one specific item. The trial court improperly ordered restitution for other missing items without proof that these losses were directly or indirectly caused by the defendant’s offenses. Mansingh v. State, 588 So. 2d 636 (Fla. 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 consideration of Mr. O’Conner’s ability to pay to the probation officer. We therefore reverse and remand for further proceedings to determine the fair market value of the damages caused directly or indirectly by Mr. O’Conner’s offenses, and the defendant’s ability to pay restitution. § 775.089, Fla.Stat. (1989); Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987).
Reversed and remanded.
SCHEB, A.C.J., and THREADGILL and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992)…he restitution order relating to items Mansingh was not charged with stealing were reversed. Accord State v. Williams, 520 So. 2d at 276; Denson v. State, 556 So. 2d 823 (Fla. 1st DCA), review dismissed, 562 So. 2d 347 (Fla.1990); O’Conner v. State, 587 So. 2d 596 (Fla. 2d DCA 1991). See also Barkley v. State, 585 So. 2d 418 (Fla. 1st DCA 1991); Smith v. State, 590 So. 2d 1112 (Fla. 2d DCA 1991). In Ahnen v. State, 565 So. 2d 855 (Fla. 2d DCA 1990), in circumstances similar to those in this case, the victim…
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Martel v. State, 596 So. 2d 100 (Fla. 2d DCA 1992)…a number of items which were taken from the owner’s premises but which were not listed in the information and which defendant did not admit taking when he pleaded nolo contendere. We agree that there was error in that regard. See O’Conner v. State, 587 So. 2d 596 (Fla. 2d DCA 1991). Reversed and remanded for proceedings consistent herewith. RYDER, A.C.J., and DANAHY, J., concur.…
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Bryant v. State, 600 So. 2d 547 (Fla. 2d DCA 1992)…robbery and aggravated battery. We find no merit in the first point Appellant raises. Appellant’s second point is that the trial court erred in delegating its duty of determining the amount of restitution to a nonjudicial officer. O’Conner v. State, 587 So. 2d 596 (Fla. 2d DCA 1991); Perry v. State, 513 So. 2d 254 (Fla. 2d DCA 1987). The State conceded this was error. We agree, arid remand to the trial court to determine the amount of Appellant’s restitution. THREADGILL, A.C.J., and PARKER, J., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)
- Pettway v. State, 502 So. 2d 1366 (Fla. 2d DCA 1987)
- Motasha Godwin v. State, 586 So. 2d 1257 (Fla. 2d DCA 1991)