ALFREDO RAMIREZ BAUTISTA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the defendant waived objection to restitution, the amount ordered must be within his ability to pay.
Defendant was convicted of leaving the scene of an accident and agreed to pay restitution. At the hearing, he objected to the amount, citing his inabi…
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LEHAN, Acting Chief Judge.
Defendant appeals the order requiring him to pay $123,971.53 restitution upon his conviction for leaving the scene of an automobile accident with injuries. He challenges the propriety of any restitution under the circumstances of this case and also contends the trial court failed to consider his ability to pay $123,971.53. We reverse.
As part of a negotiated plea, defendant agreed to pay restitution, reserving his right to a hearing to determine the amount. Because of his agreement, he has waived any objection to the propriety of restitution. See Ferris v. State, 558 So. 2d 179 (Fla. 2d DCA 1990); Pollock v. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984). However, at the restitution hearing defendant effectively objected to the amount of restitution on the basis that he did not have the ability to pay. According to the evidence, he supported four people with the wages he earned picking tomatoes.
We strike the amount of restitution and remand so that the trial court may order restitution in an amount which is reasonably within the defendant’s present or potential future ability to pay. See Medina v. State, 591 So. 2d 1085 (Fla. 3d DCA 1991); § 775.089(6), Fla.Stat. (1991). See also Peters v. State, 555 So. 2d 450 (Fla. 4th DCA 1990) (condition of probation should not be impossible to perform).
ALTENBERND and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Therrien v. State, 637 So. 2d 288 (Fla. 5th DCA 1994)…present such an issue. Specifically, section 775.089(6) requires the judge to consider the “present and potential future financial needs and earning ability of the defendant and his dependents,” as well as other relevant factors. Bautista v. State, 600 So. 2d 1255 (Fla. 2d DCA 1992); Cogdell v. State, 547 So. 2d 256 (Fla. 5th DCA 1989); Ballance v. State, 447 So. 2d 974, 975 (Fla. 1st DCA 1984); M.A.R. v. State, 433 So. 2d 29 (Fla. 5th DCA), rev. denied, 441 So. 2d 632 (Fla.1983). The defendant must then esta…
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Blaine Crosby and Scott Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994)…nts have waived any argument concerning restitution because they agreed to pay at the plea hearing. This agreement did waive any argument as to the propriety of restitution, and as to the minimum amount to be paid, $1,000.00 each. Bautista v. State, 600 So. 2d 1255 (Fla. 2d DCA 1992). At the plea hearings, however, the appellants informed the court they were challenging the number of cattle the state claimed were stolen, as well as their ability to pay. They again raised these arguments at the restitution hear…
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Deangelus v. State, 614 So. 2d 1194 (Fla. 2d DCA 1993)…lant demonstrated that she has no present nor potential future financial resources to pay the $95,172.23 in restitution ordered by the trial court. § 775.089(7), Fla.Stat. (1989); Boss v. State, 613 So. 2d 525 (Fla. 5th DCA 1993); Bautista v. State, 600 So. 2d 1255 (Fla. 2d DCA 1992); Medina v. State, 591 So. 2d 1085 (Fla. 3d DCA 1991). We strike the amount of restitution and remand for the trial court to determine a reasonable amount of restitution within the appellant’s ability to pay. Affirmed in part,…
Authorities Cited
- Kamal Peters v. State, 555 So. 2d 450 (Fla. 4th DCA 1990)
- Fisher v. Fisher, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Pollock v. Honorable Fred L. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984)
- Ferris v. State, 558 So. 2d 179 (Fla. 2d DCA 1990)
- Medina v. State, 591 So. 2d 1085 (Fla. 3d DCA 1991)
- Brookwood-Jackson Cnty. Convalescent Ctr. & Brookwood-Walton Cnty. Convalescent Ctr. v. Dep't OF Health & Rehabilitative Servs., 591 So. 2d 1085 (Fla. 1st DCA 1992)