STEVEN WARD LUNSFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in imposing restitution without holding a hearing after the defendant objected and a hearing was promised.
The defendant pled nolo contendere to aggravated battery. The state requested restitution for property damage and medical bills. The defendant objecte…
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W. SHARP, Judge.
Lunsford appeals the imposition of restitution for property damage after he pled nolo contendere to one count of aggravated battery for hitting Shawn Morris with a metal pipe.1 Lunsford claims the trial court erred in failing to set a restitution hearing, after counsel objected to the imposition of restitution and requested that the state submit evidence to support its claim. We agree and reverse.
At the plea hearing the state requested restitution of $248 for medical bills and $2,200 for damage to the victim’s car. When defense objected the judge agreed to set a restitution hearing, but none was held. Several months later, Lunsford was represented by a different attorney at the sentencing hearing. He moved for a one month continuance so Lunsford’s attorney could be present. However, the trial judge denied the motion and summarily sentenced Lunsford to ten years probation, conditioned on restitution of $2,458.55.
Section 775.089(7), Florida Statutes (1991) puts the burden of demonstrating the amount of loss to be compensated for by restitution on the state. See also Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994) (state has burden of proving loss); Vanlieu v. State, 630 So. 2d 1218 (Fla. 5th DCA 1994) (if objection to amount of restitution, state must establish amount at hearing). In this case, the amount of restitution was objected to by the defendant and the trial judge as sured him a hearing would be scheduled. None was ever held. Therefore, this cause must be reversed and the cause remanded to hold a restitution hearing as promised.
REVERSED and REMANDED.
DIAMANTIS and THOMPSON, JJ., concur. . § 784.045(l)(a)(2), Fla.Stat. (1991).
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Citator
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Noonan v. State, 709 So. 2d 635 (Fla. 2d DCA 1998)…, Noonan requested a restitution hearing but waived his right to be present at the hearing. When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to separate hearing. See Lunsford v. State, 637 So. 2d 348 (Fla. 5th DCA 1994); Goodson v. State, 400 So. 2d 791, 793 (Fla. 2d DCA 1981). Waiving the right to be present at the restitution hearing does not waive the right to require the State to prove the amount of restitution. Judge Webb, at the [*636] sen…
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Javon Graham v. State, 720 So. 2d 294 (Fla. 5th DCA 1998)…idence. See Vanlieu v. State, 630 So. 2d 1218 (Fla. 5th DCA 1994). Furthermore, when disputed, the state has the burden of demonstrating the amount of the loss sustained by the victim. See § 775.089(7), Fla. Stat. (1995); see also Lunsford v. State, 637 So. 2d 348 (Fla. 5th DCA 1994). Here, during the sentencing hearing, defense counsel agreed that $140 was the amount of actual damages sustained by the victim, but objected to the $500 claimed by the victim for lost wages. No documentation or evidence was pre…
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Chadwick Labelle Oliver v. State, 788 So. 2d 1017 (Fla. 2d DCA 2001)…e costs as conditions of his probation. Oliver argues, and the State acknowledges, that the State did not meet its burden in demonstrating the amount of loss to be compensated for by restitution. § 775.089(7), Fla. Stat. (1997); Lunsford v. State, 637 So. 2d 348 (Fla. 5th DCA 1994). We agree, and reverse and remand for a separate hearing on the restitution amount. The State argues that these issues were not preserved for appeal because Oliver did not specifically argue before the trial court that the Stat…
Authorities Cited
- Bolling v. State, 631 So. 2d 310 (Fla. 5th DCA 1994)
- Vanlieu v. State, 630 So. 2d 1218 (Fla. 5th DCA 1994)