MARVIN OLLIE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marvin Smith appealed three restitution orders, challenging whether the trial court could order restitution at sentencing and then determine the amount at a later hearing. The court held that this procedure was proper, but struck down the court's attempt to delegate payment schedule determination to the Department of Corrections.
A trial court may properly order restitution at sentencing and determine the specific amount at a later hearing without violating the 60-day limitation for modifying sentences. However, the court may not delegate to the Department of Corrections the responsibility for determining payment amounts; instead, the court may adopt a payment schedule itself, potentially with recommendations from a probation officer.
[1] A trial court may determine the amount of restitution at a hearing subsequent to the initial sentencing date.
[2] The 60-day limitation for modifying a sentence under Rule 3.800(b), Florida Rules of Criminal Procedure, does not apply when restitution was ordered at sentencing and the…
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Join FLexlaw to unlock all legal intelligence“A trial court may properly determine the amount of restitution at a hearing subsequent to the sentencing date.”
Establishes the core holding that restitution amount can be determined post-sentencing.
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Join FLexlaw to unlock all legal intelligenceSmith was sentenced on June 13, 1988, at which time the trial court ordered restitution but did not specify an amount. On October 3, 1990, the trial c…
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PER CURIAM.
Marvin Smith appeals three restitution orders entered against him by the trial court pursuant to section 775.089, Florida Statutes (1987).1 Appellant argues that the trial court was not authorized to order restitution at the initial sentencing which took place on June 13,1988, and then determine the actual amount of restitution at a hearing held on October 3, 1990. We disagree. A trial court may properly determine the amount of restitution at a hearing subsequent to the sentencing date. Villarreal v. State, 516 So. 2d 63 (Fla. 2d DCA 1987). The 60-day limitation provided by Rule 3.800(b), Florida Rules of Criminal Procedure, for modifying a sentence, does not apply in this case since (1) the court did in fact order restitution at the time of Smith’s sentencing; and (2) Smith never objected to the trial court’s determination of an amount of restitution at the October 1990 hearing.
Although the trial court properly imposed a specified amount of restitution at the subsequent hearing, the court’s attempt to delegate to the Department of Corrections the responsibility to determine an amount for regular payments to the aggrieved party is ineffectual and must be stricken. Williams v. State, 556 So. 2d 799 (Fla. 4th DCA 1990). On remand the trial court may adopt a payment schedule pursuant to section 775.089(3), Florida Statutes (1987), and if it chooses to do so, may solicit and obtain recommendations from Smith’s probation officer.2 Ballance v. State, 447 So. 2d 974, 976 (Fla. 1st DCA 1984).
The restitution orders under appeal are remanded to the trial court for further proceedings consistent with this opinion.
BOOTH, WOLF and KAHN, JJ., concur. . The statute provides in pertinent part:
(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for damage or loss caused directly or indirectly by the defendant’s offense, unless it finds reasons not to order such restitution. Restitution may be monetary or nonmonetary restitution. The court shall make the payment of restitution a condition to probation in accordance with s. 948.03.
(3)(a) The court may require that the defendant make restitution under this section within a specified period or in specified installments.
. The trial court is not required to establish a payment schedule, and should no schedule be established, "restitution must be made immediately.” Section 775.089(3)(c), Fla.Stat. (1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Osteen v. State, 616 So. 2d 1215 (Fla. 5th DCA 1993)…ution in the amount of $3,017.70 based on the property loss statement which Eycleshimer presented at the restitution hearing. The trial court’s reliance upon the pre-sentence investigation reports in this case was also erroneous. In Smith v. State, 589 So. 2d 387 (Fla. 1st DCA 1991), the court held that the trial court’s delegation to the Department of Corrections of the responsibility to determine an amount for regular restitution payments to the aggrieved party was ineffectual. Similarly, the trial court’s…
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Tilden Lee Fichera v. State, 688 So. 2d 453 (Fla. 1st DCA 1997)…gated to Fiehera’s probation officer the responsibility for creating a schedule of payments consistent with his ability to pay. Briggs v. State, 647 So. 2d 182 (Fla. 1st DCA 1994); Bowers v. State, 596 So. 2d 480 (Fla. 1st DCA 1992); Smith v. State, 589 So. 2d 387 (Fla. 1st DCA 1991). The restitution order must be remanded with directions to strike this language. On remand, if the trial court determines that payment of restitution in installments is appropriate, it must establish the schedule itself. See § 77…
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Bowers v. State, 596 So. 2d 480 (Fla. 1st DCA 1992)…2d 552 (Fla. 4th DCA 1989). The trial court incorrectly attempted, however, to delegate to appellant’s probation officer the responsibility of directing the payment of restitution. Such direction is ineffectual and must be struck. Smith v. State, 589 So. 2d 387, 388 (Fla. 1st DCA 1991). The sentence must therefore be remanded to allow the trial court to adopt a payment schedule pursuant to Section 775.-089(3), Florida Statutes (1989),1 and in doing so, it may solicit recommendations from appellant’s probat…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)
- Landa Williams v. State, 556 So. 2d 799 (Fla. 4th DCA 1990)
- Villarreal v. State, 516 So. 2d 63 (Fla. 2d DCA 1987)
- Robert Reno, M.D. v. Adventist Health Systems/Sunbelt, Inc., 516 So. 2d 63 (Fla. 2d DCA 1987)