JOHNNIE LEE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Lee Jones appealed a restitution order imposed during his fourth resentencing for murder and related crimes. The Florida Fourth District Court of Appeal reversed and remanded, holding that imposing restitution for the first time on remand constituted an impermissible enhanced sentence, particularly where the Florida Supreme Court had already determined the maximum allowable sentence.
The court held that imposing restitution for the first time on remand constituted a prohibited enhanced sentence and reversed the restitution requirement. The trial court was directed to impose the maximum sentence of 25 years imprisonment without the restitution component.
[1] Restitution is considered part of a criminal sentence.
[2] Imposing restitution for the first time on remand constitutes a prohibited enhanced sentence.
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Join FLexlaw to unlock all legal intelligence“Certainly, 25 years imprisonment plus a requirement to pay restitution to the insurance company of $650,000 is a greater sentence than 25 years imprisonment.”
Establishes that adding restitution to an already-mandated sentence constitutes an impermissible enhancement
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Join FLexlaw to unlock all legal intelligenceJones was convicted of third-degree murder, grand theft, and leaving the scene of an accident after stealing a dump truck and causing a fatal head-on …
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PER CURIAM.
Appellant claims that the court erred in ordering restitution to an insurance company for amounts paid to the family of the victim of appellant’s crime. For the follow ing reasons, we reverse and remand with directions that the provisions for restitution be stricken. See Jones v. State, 559 So. 2d 204 (Fla.1990), cert. denied, — U.S. —, 111 S.Ct. 276, 112 L.Ed.2d 232 (1990); Abt v. State, 581 So. 2d 1001 (Fla. 4th DCA 1991).
Appellant was convicted of third degree murder, grand theft and leaving the scene of an accident. Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987). He stole a dump truck and ran it head on into another vehicle, causing the death of its occupant. At the first sentencing hearing on November 12, 1985, appellant was sentenced to 50 years of imprisonment as a habitual offender, but the court elected not to impose restitution. The sentence was overturned on appeal because habitual offender status was not a valid reason for departure. Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987) (Jones I).
At the second sentencing hearing in August of 1987, the court gave three written reasons for departing from the recommended range and sentenced appellant to 25 years. No mention of restitution was made. That sentence was also appealed and reversed based on Shull v. Dugger, 515 So. 2d 748 (Fla. 4th DCA 1988). Jones v. State, 526 So. 2d 173 (Fla. 4th DCA 1988) (Jones II).
On the third resentencing in August of 1988, restitution was not mentioned, and the court imposed a sentence of 50 years as a habitual offender. This court upheld the sentence. Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989) (Jones III). However, upon discretionary review, the Florida Supreme Court held that double jeopardy principles prohibited an increase of the sentence. Jones v. State, 559 So. 2d 204 (Fla.1990) (Jones IV). The court found “that the maximum sentence that can be imposed by the trial court is twenty-five years.” Id. at 207.
At the fourth resentencing in November 1990, the state introduced evidence that in 1985 the victim’s mother had filed a wrongful death action against the owner of the dump truck that appellant had stolen. As a result, the insurance company for the owner had settled the claim for $653,-155.00. In addition, the state showed that appellant had filed a lawsuit against Prison Health Services, Inc. who was responsible for his medical treatment for injuries he also received in the accident in which the victim died. As a result of alleged negligent medical care, appellant’s leg had to be amputated. There was no evidence in the record of the amount, if any, that appellant had received or expected to receive as a result of his lawsuit. However, based upon the “expectation of potential payment” from the lawsuit, the trial court found that appellant now had the ability to pay restitution to the insurance company. Appellant objected and appealed the trial court’s sentence.
Restitution is part of a sentence. Section 775.089(l)(a), Florida Statutes (1983). This court recently held that imposition of restitution for the first time on remand constituted a prohibited enhanced sentence. Abt v. State, 581 So. 2d 1001 (Fla. 4th DCA 1991). Furthermore, in Jones IV, the Supreme Court remanded for the imposition of a maximum sentence of 25 years imprisonment. Certainly, 25 years imprisonment plus a requirement to pay restitution to the insurance company of $650,000 is a greater sentence than 25 years imprisonment. See also Morganti v. State, 573 So. 2d 820 (Fla.1991).
Because of our resolution of the first issue, we do not address the other points raised by appellant.
Reversed and remanded to impose a maximum sentence of 25 years imprisonment.
ANSTEAD, WARNER and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Savory v. State, 600 So. 2d 1 (Fla. 4th DCA 1992)…te, 591 So. 2d 1134 (Fla. 4th DCA 1992); In the Interest of B.M., 580 So. 2d 896 (Fla. 4th DCA 1991); Weckerle v. State, 579 So. 2d 742 (Fla. 4th DCA 1991); McCaskill v. State, 520 So. 2d 664 (Fla. 1st DCA 1988). Savory’s reliance on Jones v. State, 590 So. 2d 1061 (Fla. 4th DCA 1991), and Abt v. State, 581 So. 2d 1001 (Fla. 4th DCA 1991), is misplaced because in those cases the original sentencing order did not impose restitution. It was attempted on remand, which is prohibited. We have considered appellant’…
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Charles v. State, 59 So. 3d 291 (Fla. 3d DCA 2011)…lear that a fine is as much a part of a sentence as is incarceration. See Morganti v. State, 573 So. 2d 820, 821 (Fla.1991) (stating that a lawful sentence can include several penalties, such as incarceration, probation, and a fine); Jones v. State, 590 So. 2d 1061, 1062 (Fla. 4th DCA 1991) (stating that restitution is a part of a sentence). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ash…
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Brooks v. State, 655 So. 2d 238 (Fla. 1st DCA 1995)…restitution was imposed at the original sentencing. We agree and remand to the trial court with directions to vacate the order of restitution. See Abt v. State, 581 So. 2d 1001 (Fla. 4th DCA), review denied 591 So. 2d 184 (Fla.1991); Jones v. State, 590 So. 2d 1061 (Fla. 4th DCA 1991). WEBSTER and VAN NORTWICK, JJ., 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
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Jones v. State, 559 So. 2d 204 (Fla. 1990)
- Jones v. State, 502 So. 2d 1375 (Fla. 4th DCA 1987)
- Morganti v. State, 573 So. 2d 820 (Fla. 1991)
- Jones v. State, 540 So. 2d 245 (Fla. 4th DCA 1989)
- Jones v. State, 526 So. 2d 173 (Fla. 4th DCA 1988)
- ABT v. State, 581 So. 2d 1001 (Fla. 4th DCA 1991)
- State v. Iglesias, 581 So. 2d 1001 (Fla. 2d DCA 1991)