LAZARO BLASCO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Blasco appealed a restitution order imposed as a condition of probation, arguing the trial court failed to determine his ability to pay as required by Florida law. The Third District affirmed, holding that the statutory requirement is waived when restitution is agreed to as part of a negotiated plea that is voluntarily and intelligently accepted.
No. Although section 775.089(6) ordinarily requires a sentencing judge to determine ability to pay before ordering restitution, this safeguard is not available when restitution results from a negotiated plea that is voluntarily and intelligently accepted by the defendant. Blasco waived the protection of section 775.089(6) by agreeing to restitution in his plea agreement and failing to object at sentencing.
[1] A defendant waives the statutory protection requiring a court to establish ability to pay before ordering restitution when the restitution is part of a voluntarily and in…
[2] A defendant's agreement to make restitution as part of a negotiated plea, acknowledged in writing and in open court, constitutes a waiver of the right to have ability to…
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Join FLexlaw to unlock all legal intelligence“the defendant should not be encouraged or allowed to take advantage, on appeal or on collateral attack, of an error he initiated or induced below”
Establishes the foundational rationale for the negotiated plea exception to the ability-to-pay requirement
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Join FLexlaw to unlock all legal intelligenceBlasco pleaded guilty pursuant to a negotiated plea agreement that included a restitution condition. In open court, he acknowledged his obligation to …
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PER CURIAM.
The sole claim in this appeal is that the trial court erred in ordering defendant to make restitution as a condition of probation without first establishing the defendant’s ability to pay the amount ordered.
We affirm the trial court’s order.
Section 775.089(6), Florida Statutes (1991) requires that a sentencing judge determine the defendant’s ability to pay prior to ordering a defendant to make restitution.
However, this safeguard is not available if the order to make restitution resulted from a negotiated plea which was voluntarily and intelligently accepted by the defendant, as in the instant case. See Pollock v. Bryson, 450 So. 2d 1183 (Fla. 2d DCA 1984); see also Kirkland v. State, 575 So. 2d 1315 (Fla. 2d DCA 1991); Godfrey v. State, 506 So. 2d 1158 (Fla. 3d DCA 1987); Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985). This exception has been firmly established and is based upon the underlying rationale that the defendant should not be encouraged or allowed to take advantage, on appeal or on collateral attack, of an error he initiated or induced below. Pollock, at 1186.
Here, the defendant agreed, in writing, to make restitution as part of his negotiated plea. In open court, he acknowledged that obligation when he entered his plea:
TRIAL JUDGE: The state is going to recommend that you would be sentenced to a period of 15 years of probation following your incarceration and you are going to make restitution in the cause. Is that your understanding?
THE DEFENDANT: Yes, sir. Again, three months later, at sentencing, Blasco was reminded of his obligation to make restitution under his negotiated plea. In the presence of Blasco and his counsel, the state attorney argued for the maximum incarceration time in addition to the order for restitution. In discussing the severity of the crimes charged, she observed the sum of the restitution Blasco was obligating himself to pay.
ASSISTANT STATE ATTORNEY: The restitution in this cause is the greatest I have ever dealt with in a property crime. I would like to present the court with a restitution order of $2,000 to the Insurance Company of North America, who paid the first $2,000 of claims of Eloise Cuddeback; $43,900 to Eloise Cutteback; $200 to David Quinn; $40,908 to David and Lita Pulinnen; $601 to David Stal-lard; $305 to Dale Susan Gates; $220 to Sandra Pinder; $250 to Jeffrey Watson; $250 to Raymond Hennesy; $375 to Warren Kalback; $1,500 to Rose Pinder; $3,115 to Kristi Diamond.
THE COURT: Mr. Blasco, is there anything you want to add before I pronounce the sentence?
The defendant responded only that he wished the court to consider his placement in a rehabilitation program. Blasco was clearly made aware of the restitution amount that, by his plea, he was obligating himself to repay.
However, he failed to take any action to let the court know he had any problem with the amount of the obligation. A careful reading of the transcripts leaves no doubt that Blasco voluntarily and intelligently accepted the restitution amount as part of his negotiated plea.
Thus, we find defendant “waived” the protection of section 775.089(6) by his own actions. See Godfrey, 506 So. 2d at 1158; Pollock, 450 So. 2d at 1186; Dent v. State, 432 So. 2d 163 (Fla. 4th DCA 1983); G.H. v. State 414 So. 2d 1135 (Fla. 1st DCA 1982). Accordingly, we affirm the order under review.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sims v. State, 637 So. 2d 21 (Fla. 4th DCA 1994)…o. 2d 91 (Fla. 1st DCA 1990). Because defendant did not object to the imposition of restitution or present evidence on his inability to pay, any error was waived. Massie v. State, 635 So. 2d 110 (Fla. 2d DCA 1994); Bolling; Padilla; Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992). Additionally, restitution was not ordered as a condition of probation, but pursuant to section 775.089(3)(b)(2), Florida Statutes (1993) which requires payment “five years after the term of imprisonment imposed if the court does…
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Massie v. State, 635 So. 2d 110 (Fla. 2d DCA 1994)…entitled to present evidence as to his ability to pay because he agreed to pay restitution as part of his plea agreement and he did not seek to present evidence at the original restitution hearing regarding an inability to pay. See Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992). Of course, in any subsequent enforcement proceeding based on the appellant’s failure to comply with the restitution provisions of probation, the appellant may defend based on his financial inability to pay. See § 948.06(4), Fla.S…
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Fernandez v. State, 701 So. 2d 632 (Fla. 4th DCA 1997)…needs and earning ability. See § 775.089(6), Fla. Stat. (1995). A defendant who agrees to an amount of restitution as part of a plea agreement and fails to argue the inability to pay waives the protection of the statute. See [*633] Blasco v. State, 601 So. 2d 1264, 1266 (Fla. 3d DCA 1992). However, on a rule 8.850 motion, based on the protection of that statute, the trial court cannot deny the motion without attaching to its denial those portions of the record which show that such payment was part of the plea…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)
- Colan's Rest. & Fla. Farm Bureau Cas. Ins. Co. v. Cranford, 414 So. 2d 1135 (Fla. 1st DCA 1982)
- 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)
- Dent v. State, 432 So. 2d 163 (Fla. 4th DCA 1983)
- Kirkland v. State, 575 So. 2d 1315 (Fla. 2d DCA 1991)
- Godfrey v. State, 506 So. 2d 1158 (Fla. 3d DCA 1987)
- Rojas v. State, 506 So. 2d 1158 (Fla. 3d DCA 1987)