JOHN D. BOYKIN, II, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1993-05-03
No. 92-3236
BARFIELD and KAHN, JJ., concur.
617 So. 2d 823 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

John D. Boykin, II appeals an amended order of restitution imposed by the trial court for trafficking in stolen property. The court holds that the trial court lost jurisdiction to impose restitution because the modification occurred outside the sixty-day window prescribed by Florida Rule of Criminal Procedure 3.800(b).


Holding

The trial court lacked jurisdiction to impose restitution because the oral pronouncement of restitution occurred outside the sixty-day modification period prescribed by Florida Rule of Criminal Procedure 3.800(b). A failure to order restitution at sentencing results in an incomplete sentence subject to modification only within sixty days, not an illegal sentence subject to correction at any time.


Headnotes

[1] A trial court loses jurisdiction to modify a sentence, including the imposition of restitution, if it fails to act within the sixty-day period prescribed by Florida Rule…

[2] The failure to order restitution at the time of sentencing renders the sentence incomplete, not illegal, and subject to modification within the sixty-day period.

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Key Quotes

“The failure to order restitution at sentencing does not result in an illegal sentence which is subject to correction at any time. See Fla.R.Crim.P. 3.800(a). Rather, such sentence is incomplete, and so subject to modification.”

Establishes the fundamental distinction between illegal and incomplete sentences, and limits the trial court's jurisdiction to modify incomplete sentences to the sixty-day window.

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Facts & Procedural History

Appellant's girlfriend took a custom-made ring and gold link chain bracelet to a jeweler to be sold on consignment. The jewelry had been stolen during…

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Opinion of the Court
JOANOS, Chief Judge.

JOANOS, Chief Judge.

Appellant, John D. Boykin, II, appeals an amended order of restitution. He contends the imposition of restitution was improper, because the trial court lost jurisdiction to order restitution. We agree, and remand with directions.

The restitution question in this case arose in the context of a charge of trafficking in stolen property, i.e., a man’s custom-made ring and a man’s gold link chain bracelet. The jewelry was taken when a moving company moved the victims’ property from one residence to another. When the victims reported the theft, they advised police that they suspected the two movers. Five days after the theft was reported, appellant’s girl friend took the items to a jeweler to be sold on consignment. The jeweler recognized the ring as one he had made for the victims, and notified the police.

Subsequently, appellant pled nolo conten-dere to one count of dealing in stolen property. In return for the plea, the state agreed not to pursue any other charges stemming from the incident, including any charge against the possible co-defendant. On June 9, 1992, the trial court adjudicated appellant guilty and placed him on probation for ten years. On June 11, 1992, the prosecutor formally announced a “No Information” with respect to the proposed grand theft charge. On June 18, 1992, the trial court entered an order which states in part: “RESTITUTION IS NON-APPLICABLE IN THIS MATTER.”

On August 11,1992, a restitution hearing was conducted. The victim testified that a man’s ring and a man’s bracelet had been stolen; she stated the bracelet had a fair market value of $100.00, but she was unable to provide evidence as to its claimed value. Appellant’s counsel argued that restitution was inappropriate in this case. Counsel noted that appellant could not be required to pay restitution for the ring, which had been recovered, appellant had not been charged with trafficking with respect to the bracelet, and the theft charge had been dismissed. The trial court pronounced its intent to order restitution in the amount of $100.00. Thereafter, on August 26, 1992, the trial court entered an “Amended Order of Restitution and/or Civil Judgment,” ordering appellant to pay restitution to the victim in the amount of $100.00.

Section 775.089(l)(a), Florida Statutes, provides in part: “[i]n 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 clear and compelling reasons not to order such restitution ...” Subparagraph (l)(b) provides that in the event the court does not order restitution, “it shall state on the record in detail the reasons therefor.”

The failure to order restitution at sentencing does not result in an illegal sentence which is subject to correction at any time. See Fla.R.Crim.P. 3.800(a). Rather, such sentence is incomplete, and so subject to modification. State v. Martin, 577 So. 2d 689, 690 (Fla. 1st DCA), review denied, 587 So. 2d 1329 (Fla.1991). Modifi cation of an incomplete sentence must be made within sixty days. Fla.R.Crim.P. 3.800(b); State v. Martin.

In the instant case, the state acknowledges that restitution was not mentioned at the sentencing proceeding on June 9, 1992, and that on June 18, 1992, the trial court entered an order which arguably provided a reason for denying restitution. Despite the order of June 18, 1992, on August 11, 1992, a restitution hearing was conducted, and at its conclusion, the trial court announced its intent to impose restitution in the amount of $100.00. The state concedes that the trial court’s oral pronouncement imposing restitution occurred outside the sixty-day period for modification. Because the trial court lost jurisdiction to modify the probation order, the cause must be remanded for further proceedings.

Accordingly, this cause is remanded with direction to strike the amended order of restitution.

BARFIELD and KAHN, JJ., concur.


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Citator

Cited By

  • Scott v. State, 629 So. 2d 280 (Fla. 5th DCA 1993)
    …ng. Fla.R.Crim.P. 3.800(b). We agree with the defendant that the failure of the trial court to impose the orders of restitution within 60 days resulted in its loss of jurisdiction, and we therefore vacate the restitution orders. See Boykin v. State, 617 So. 2d 823 (Fla. 1st DCA 1993); Campbell v. State, 614 So. 2d 600 (Fla. 1st DCA 1993); Weaver v. State, 588 So. 2d 53 (Fla. 3d DCA 1991); State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990). See also State v. Sanderson, 625 So. 2d 471 (Fla.1993). We reject the s…

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