PEGGY L. PALAG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peggy Palag appealed provisions of her community control order requiring her to maintain an hourly activity log and pay $26,974 in restitution. The Florida First District Court of Appeal reversed both conditions, finding the daily log requirement was not pronounced at sentencing and not authorized by statute, and that the restitution amount was imposed without proper notice and opportunity to be heard.
The daily log condition requiring hourly accounting of activities must be stricken because it was not pronounced orally at sentencing and is not authorized by statute. The restitution amount must also be struck because it was improper to establish a restitution amount without affording the defendant prior notice and an opportunity to be heard on the issue.
[1] A condition of community control requiring an hourly accounting of activities in a daily log must be pronounced orally at sentencing and be authorized by statute.
[2] A defendant must be afforded prior notice and an opportunity to be heard on the issue of restitution amounts.
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Join FLexlaw to unlock all legal intelligence“The condition of community control requiring appellant to maintain a daily log containing an hourly accounting of her activities was not pronounced orally at sentencing, and is not authorized by statute. Therefore, this condition must be stricken.”
Establishes the requirement that sentencing conditions must be pronounced orally and be statutorily authorized
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Join FLexlaw to unlock all legal intelligenceAppellant Peggy Palag was subject to a community control order that included two challenged provisions: (1) a requirement to maintain a daily log with…
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PER CURIAM.
Appellant appeals the provisions of her community control order which require her to maintain an hourly accounting of her activities in a daily log, and require her to make restitution in the amount of $26,-974.00. We reverse as to those conditions and remand for further proceedings.
The condition of community control requiring appellant to maintain a daily log containing an hourly accounting of her activities was not pronounced orally at sentencing, and is not authorized by statute. Therefore, this condition must be stricken. Black v. State, 614 So. 2d 1220 (Fla. 2d DCA 1993); Vinyard v. State, 586 So. 2d 1301 (Fla. 2d DCA 1991). See also Nichols v. State, 528 So. 2d 1282 (Fla. 1st DCA 1988). The parties recognize that the provisions of section 775.089(l)(a), Florida Statutes, place a defendant on constructive notice that restitution may be ordered. Reynolds v. State, 598 So. 2d 188, 190 (Fla. 1st DCA 1992). Nevertheless, it is improper to establish a restitution amount without affording the defendant prior notice and an opportunity to be heard on the issue. Reynolds, 598 So. 2d at 190; Harris v. State, 593 So. 2d 1169, 1171 (Fla. 1st DCA 1992). The state concedes the trial court erred in imposing a restitution amount in the written judgment, when the amount was not mentioned at the revocation proceeding. Moreover, the record before this court is silent with regard to the manner in which the restitution amount was determined.
Accordingly, this cause is remanded with directions to strike community control condition thirteen, requiring appellant to maintain an hourly record of her activities, and to conduct a hearing on the amount of restitution appellant will be required to pay.
ZEHMER, C.J., and JOANOS and BARFIELD, JJ., concur.
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Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995)…ution, it did so when it imposed a restitution amount in the written order with no mention during the sentencing hearing of the amount of restitution, the manner in which restitution was determined, or appellant’s ability to pay. See Palag v. State, 622 So. 2d 1151 (Fla. 1st DCA 1993). Before a trial court grants a motion for restitution, it shall consider several factors, including the loss by the victim and appellant’s ability to pay restitution. § 775.089(6), Fla.Stat. (1993). See also Strickland v. State,…
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Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996)…o 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 court erred in imposing a restitution amount in the written judgment, when the amount was not mentioned at the revocation proceeding. Moreover, the record before this court is silent with rega…
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Visage v. State, 664 So. 2d 1101 (Fla. 1st DCA 1995)…3)? We also affirm appellant’s sentences, except for the orders imposing restitution. The state correctly concedes that restitution should not have been imposed without giving the appellant notice and an opportunity to be heard. See Palag v. State, 622 So. 2d 1151 (Fla. 1st DCA 1993); Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995). Accordingly, we reverse the restitution orders and remand with directions to conduct a hearing on the amount of restitution appellant will be required to pay. AFFIRMED in pa…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vinyard v. State, 586 So. 2d 1301 (Fla. 2d DCA 1991)
- Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)
- Clemond Edward Harris v. State, 593 So. 2d 1169 (Fla. 1st DCA 1992)
- Nichols v. State, 528 So. 2d 1282 (Fla. 1st DCA 1988)
- State v. Marks, 614 So. 2d 1220 (Fla. 4th DCA 1993)