RICHARD COLEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed and remanded because the trial court imposed a departure sentence without written reasons and imposed restitution without considering the defendant's ability to pay.
A trial court must provide written reasons for a departure sentence and must consider a defendant's ability to pay before imposing restitution.
[1] A trial court must consider a defendant's ability to pay before imposing restitution, and both case law and statutory law require such consideration prior to assessment o…
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Join FLexlaw to unlock all legal intelligence“[T]hat's a matter you'll have to address on its merits if the state ever attempts to charge you with violating your supervision for not meeting that. It's not an impediment to the assessment of the obligation.”
Trial court's refusal to consider Coleman's ability to pay restitution.
Richard Coleman was sentenced for a probation violation and ordered to pay restitution. Coleman asserted his inability to pay, but the trial court ref…
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PER CURIAM.
In this appeal, Richard Coleman contends, and the State agrees, that the sen tence imposed for violation of probation constituted a departure sentence for which written reasons were required. See State v. Davis, 630 So. 2d 1059 (Fla.1994). The record is clear, however, that the trial court did not intend to impose a departure sentence; therefore, upon remand, the trial court may depart from the guidelines by providing valid written reasons. See State v. Vanhorn, 561 So. 2d 584 (Fla.1990); Brown v. State, 639 So. 2d 1136 (Fla. 5th DCA 1994).
Next, Coleman asserts that the trial court imposed restitution without first considering his financial resources. The record shows that Coleman attempted to assert his inability to pay restitution and asked the trial court to address his ability to pay. The trial court refused, stating, “[T]hat’s a matter you’ll have to address on its merits if the state ever attempts to charge you with violating your supervision for not meeting that. It’s not an impediment to the assessment of the obligation.” The State concedes that both case law and statutory law require the trial court to consider a defendant’s ability to pay restitution prior to imposing such an order. See § 775.089(6), Fla.Stat. (1993); Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993).
REVERSED and REMANDED for a hearing on Coleman’s ability to pay restitution and for resentencing.
COBB, GOSHORN and DIAMANTIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nieves v. State, 678 So. 2d 468 (Fla. 5th DCA 1996)…eimposed. Conditions 19 and 20 of the probation order require appellant to pay restitution. At sentencing, appellant’s counsel argued that appellant was 100% disabled and insolvent and should not be required to pay restitution. In Coleman v. State, 651 So. 2d 239 (Fla. 5th DCA 1995), this court held that a defendant’s ability to pay must be considered by the trial court before imposing restitution. However, effective May 8, 1995, section 775.089(6) was amended to provide that financial resources and ability…
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Pickett v. State, 678 So. 2d 857 (Fla. 5th DCA 1996)…efendant’s ability to pay. The court here did not make any findings relative thereto. Upon remand the trial court has the option to either strike the restitution provision or conduct the appropriate evidentiary hearing.1 See Weeks; Coleman v. State, 651 So. 2d 239 (Fla. 5th DCA 1995). Further, it was error for the court to direct the probation officer to set the restitution payment schedule as only the trial court may do so. See Hillman v. State, 636 So. 2d 181 (Fla. 5th DCA 1994). Finally, the State concede…
Authorities Cited
- State v. Davis, 630 So. 2d 1059 (Fla. 1994)
- State v. Vanhorn, 561 So. 2d 584 (Fla. 1990)
- Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993)
- Brown v. State, 639 So. 2d 1136 (Fla. 5th DCA 1994)