RODNEY BURCH, A/K/A LEPKE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution ordered without notice or hearing is reversible error, and that habitual felony offender sentencing was properly affirmed.
Rodney Burch was sentenced as a violent habitual offender and ordered to pay restitution without notice or a hearing. The trial court provided no reas…
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ON MOTION FOR REHEARING
PER CURIAM.
On rehearing we sua sponte withdraw our prior opinion and substitute the following.
Rodney Burch was charged on multiple counts in four separate prosecutions. He pled guilty to one count of robbery, one count of battery, two counts of robbery with a firearm, one count of aggravated assault, one count of possession of cocaine and one count of carrying a concealed firearm. Under the recommended guidelines range Burch would have received between 27 to 40 years. However, the trial court sentenced Burch as a violent habitual offender and increased his sentence. The trial court gave no reasons for sentencing Burch as a habitual offender. Subsequently, without notice or a hearing, the trial court ordered Burch to pay restitution in the amount of $500 to a victim of the robbery, $1,200 to another victim and $1,114 to State Farm Insurance.
We reverse and remand the order of restitution because the trial court failed to consider the factors set out in section 775.089(6) and (7), Fla.Stat. (1989) which mandate that the court consider the financial resources of the defendant, and the present and potential future financial needs and earning ability of the defendant and his dependents. Imposition of restitution without notice or a hearing is reversible error. Mounds v. State, 526 So. 2d 1084 (Fla. 4th DCA 1988).
Regarding Burch’s habitual felony offender sentence, we affirm based on State v. Rucker, 613 So. 2d 460 (Fla.1993).
Affirmed in part; reversed in part and remanded for further proceedings.
HERSEY and WARNER, JJ., and WALDEN, JAMES H„ Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…ubsections 775.089(6) and (7) require a hearing to determine both the defendant’s ability to pay and the amount owed.” (citing Allen v. State, 718 So. 2d 1264 (Fla. 2d DCA 1998); Faulkner v. State, 620 So. 2d 794 (Fla. 1st DCA 1993); Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993); Denmark v. State, 588 So. 2d 324 (Fla. 4th DCA 1991))). . Sections 985.437 and 985.0301, Florida Statutes (2011), pertain to restitution ordered in the juvenile context. . See ch. 84-363, § 5, Laws of Fla. . The Legislature h…
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Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994)…’s inability to pay when given the opportunity to do so. See e.g., Cheatham. Having failed to affirmatively assert his rights under section 775.089(7), the defendant has waived the issue of ability to pay. Butts. The defendant cites Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993) as supporting reversal of the restitution order. In Burch, however, the defendant was given neither notice of nor a hearing on the restitution issue and the Fourth District held this to be reversible error. The defendant here was…
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A.B. v. State, 910 So. 2d 415 (Fla. 4th DCA 2005)…determination of the amount of restitution is abuse of discretion. See State v. Hawthorne, 573 So. 2d 330, 332-33 (Fla.1991). This court has held that the “[i]mposition of restitution without notice or a hearing is reversible error.” Burch v. State, 617 So. 2d 846, 847 (Fla. 4th DCA 1993) (on rehearing); see also Mounds v. State, 526 So. 2d 1084, 1085 (Fla. 4th DCA 1988). The State contends that this court cannot review the restitution issue because the May 12, 2004 transcript was not included in the record…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Am. Sav. & Loan Ass'n v. Levy, 526 So. 2d 1084 (Fla. 4th DCA 1988)
- Odzer v. Wilson, 526 So. 2d 1084 (Fla. 4th DCA 1988)