PATRICK M. MCMANAMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McManamon appealed the summary denial of his Rule 3.850 motion for post-conviction relief challenging restitution requirements totaling $38,272. The court reversed, holding that while a defendant may waive statutory protections regarding ability-to-pay inquiries by agreeing to restitution in a plea agreement, the trial court must attach record portions conclusively demonstrating such waiver.
The court reversed the summary denial because although a defendant may waive statutory protections by agreeing to restitution in a plea agreement and failing to argue inability to pay, the trial court must attach to its order those portions of the record conclusively refuting the allegations, or remand for further proceedings.
[1] A sentencing judge must consider a defendant's ability to pay before ordering restitution.
[2] The burden of demonstrating present and potential future financial resources, and financial needs, rests with the defendant.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court, in determining whether to order restitution and the amount of such restitution, shall consider the financial resources of the defendant and the present and potential future financial needs and earning ability of the defendant.”
Establishes the statutory requirement that courts must consider ability to pay before imposing restitution.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcManamon pleaded guilty to racketeering, conspiracy to racketeer, kidnapping, armed burglary, and two counts of deriving support from prostitution. T…
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PER CURIAM.
Patrick M. McManamon has appealed an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse, and remand either for entry of an order attaching those portions of the files and records conclusively showing no entitlement to relief, or for further proceedings under the rule.
McManamon pled guilty to I. racketeering, II. conspiracy to racketeer, III. kidnapping, IV. armed burglary and VI. and VII. two counts of deriving support from prostitution (Alachua County Case No. 91-1221). In April 1991, as to Counts I-IV, McMana-mon received concurrent sentences of 10 years incarceration to be followed by 10 years probation, conditioned on payment of $19,136 in restitution. On Counts VI and VII, McManamon received concurrent 5-year probationary terms, set to run consecutively to the sentences in Counts I-IV, and conditioned on the payment of an additional $19,136 in restitution. Thus, the total restitution imposed in Case No. 91-1221 was $38,272.1
In April 1992, McManamon filed the instant motion, alleging that the restitution requirements were illegal, in that the trial court had not inquired into his ability to pay. See § 775.089(6), Fla.Stat. (the court, in determining whether to order restitution and the amount of such restitution, shall consider the financial resources of the defendant and the present and potential future financial needs and earning ability of the defendant). The court summarily denied the motion, finding it refuted by MeManamon’s written plea agreement, in which he agreed to restitution as a part of his plea. The order purported to attach a copy of the plea agreement, but did not.
A trial court, in determining whether to order restitution and the amount of such restitution, shall consider the financial resources of the defendant and the present and potential future financial needs and earning ability of the defendant. § 775.-089(6), Fla.Stat. However, a defendant waives the protection of this section when he agrees to restitution as part of a plea agreement, and fails to argue an inability to pay the amount of restitution set by the court. Blasco v. State, 601 So. 2d 1264, 1265 (Fla. 3d DCA 1992).
Thus, if McManamon agreed to restitution as part of his plea and failed to argue an inability to pay the amount eventually set by the court, see section 775.089(7), Florida Statutes (the burden of demonstrating the absence of potential future financial resources of the defendant and his financial needs is on the defendant), the trial court’s finding of waiver would be correct.
However, although it purported to do so, the trial court herein failed to attach to its order those portions of the record conclusively showing that McManamon waived his right to an inquiry into his ability to pay. The order herein must therefore be reversed, and the case remanded either for entry of an order to which is attached those portions of the record refuting McManamon’s allegations, or for further proceedings pursuant to Rule 3.850.
JOANOS, C.J., and ERVIN and ALLEN, JJ., concur. . The sentences in 91-1221 were set to run concurrently with a 15-year term imposed in Leon County Case No. 90-2576, in which case McMa-namon agreed as part of a plea to pay $26,272 in restitution. Thus, MeManamon’s restitution obligations totalled $64,544.
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Widmer v. State, 641 So. 2d 174 (Fla. 1st DCA 1994)…JOANOS, Judge. Appellant filed a motion for post-conviction relief, alleging that restitution had been ordered without inquiry into his ability to pay, see for example McManamon v. State, 609 So. 2d 91 (Fla. 1st DCA 1992) as well as ineffective assistance of counsel. The trial court apparently denied appellant’s rule 3.850 motion on the theory that it was a successive motion, and that no legal basis had been raised to attack appellant’s plea. We a…
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Fernandez v. State, 701 So. 2d 632 (Fla. 4th DCA 1997)…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 agreement and that the movant waived the right to a hearing on ability to pay. See McManamon v. State, 609 So. 2d 91 (Fla. 1st DCA 1992) (reversing and remanding summary denial of rule 3.850 motion for further proceedings or portions of record conclusively showing movant waived right to inquiry into ability to pay). Therefore, the order denying relief is reverse…
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Tillman v. State, 661 So. 2d 74 (Fla. 2d DCA 1995)…w. The trial court intimates that Tillman is attempting to go behind the plea after accepting the benefits of the bargain; however, it does not provide this court with a copy of the plea agreement to support its conclusion. See McManamon v. State, 609 So. 2d 91 (Fla. 1st DCA 1992). A defendant may raise the issue of the court’s failure to comply with the terms of the plea agreement in a motion for postconviction relief without having moved to withdraw the plea prior to sentencing. See Eggers v. State, 624…
Authorities Cited
- Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992)