FRANK RHODEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Rhoden appeals a restitution order imposed at sentencing without a hearing or evidence of the victim's actual loss. The court strikes the restitution order and remands for a proper restitution hearing consistent with Florida's statutory requirements.
The restitution order is stricken and the case is remanded for a proper restitution hearing. The trial court violated statutory requirements by failing to hold a hearing, establish the amount of loss through evidence, and give the defendant an opportunity to be heard on the restitution amount.
[1] A restitution order must be supported by evidence of the victim's loss.
[2] The state bears the burden of proving the amount of loss sustained by a victim for restitution purposes.
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Join FLexlaw to unlock all legal intelligence“Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.”
Establishes the statutory requirement that the state must prove the victim's loss by a preponderance of the evidence and that disputes over restitution must be resolved at a hearing.
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Join FLexlaw to unlock all legal intelligenceRhoden and four co-defendants were charged with grand theft and criminal mischief. Pursuant to a plea agreement, Rhoden pleaded guilty to grand theft …
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JOANOS, Judge.
Appellant Frank Rhoden contests a restitution order requiring him to pay restitution in the amount of $3,000.00. He contends the amount assessed was not a part of the negotiated plea, there was no proof of the amount assessed as restitution, and a hearing was not held to establish the amount of restitution due. The state agrees this case should be remanded with directions to hold a restitution hearing.
Appellant and four co-defendants were charged with grand theft and criminal mischief. Pursuant to a written plea agreement, appellant pled guilty to grand theft in exchange for a six-month sentencing cap, and the state’s dismissal of the criminal mischief charge. The trial court accepted the plea on May 13, 1992, and set a sentencing date in June 1992.
Sentencing actually took place on December 3, 1992. At sentencing, appellant’s counsel advised the trial court that the victim had not come forward to establish the amount of restitution due. Counsel asked the court to take this factor into consideration in the sentencing disposition. The trial court adjudicated appellant guilty of grand theft, and imposed a five-month sentence, with credit for fifty-eight days served. On the same day, the trial court issued a written Judgment and Restitution Order, directing appellant to pay restitution in the amount of $3,000.00. There was no oral pronouncement of restitution at the sentencing proceeding.
Section 775.089, Florida Statutes (1991), sets forth the procedure to be employed when restitution is an issue in the case. This section provides in pertinent part:
(6) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his dependents, and such other factors which it deems appropriate.
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. ... (Emphasis supplied.)
There is no evidence in the record before this court as to the amount of loss sustained by the victim. Moreover, the record is clear that appellant’s counsel advised the trial court that the victim had not come forward to establish the amount of loss sustained as a result of appellant’s offense. Further, the manner in which restitution was imposed deprived appellant of any opportunity to be heard on the amount assessed. The state' properly concedes error in the imposition of restitution. See Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992); Harris v. State, 593 So. 2d 1169 (Fla. 1st DCA 1992).
Accordingly, the order imposing restitution is stricken, and this cause is remanded for further proceedings in accordance with section 775.089, Florida Statutes.
BARFIELD and MICKLE, JJ., concur.
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Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996)…n robbery. In addition, on remand, the judgment must be corrected to reflect that burglary with assault is a first degree felony punishable by life. § 810.02(2)(a), Fla.Stat. (1995). We also reverse the order imposing restitution. Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993)(reversing restitution order entered without oral pronouncement of restitution or opportunity for defendant to be heard on amount assessed); Palag v. State, 622 So. 2d 1151, 1152 (Fla. 1st DCA 1993) (“The state concedes the trial…
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Dubois v. State, 650 So. 2d 228 (Fla. 1st DCA 1995)…armed robbery and attempted armed robbery. Finding no reversible error below, we affirm the convictions and sentences. We must reverse, however, the trial court’s order of restitution which was entered without any notice or hearing. Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993); Harris v. State, 593 So. 2d 1169 (Fla. 1st DCA 1992). Accordingly, we REVERSE AND REMAND for the trial court to hold such a hearing and order an appropriate amount of restitution. BOOTH, MICKLE and VAN NORTWICK, JJ., concur.…
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Norman v. State, 659 So. 2d 722 (Fla. 1st DCA 1995)…rder of restitution entered without notice or hearing); Medina v. State, 633 So. 2d 578 (Fla. 4th DCA 1994) (written order of restitution remanded where trial court did not mention restitution in its oral pronouncement of sentence); Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993) (written restitution order reversed where entered without oral pronouncement or opportunity for defendant to be heard). AFFIRMED in part, REVERSED in part, and REMANDED. BENTON and VAN NORTWICK, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)
- Clemond Edward Harris v. State, 593 So. 2d 1169 (Fla. 1st DCA 1992)