JOHN WESLEY BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Wesley Bell, convicted of burglary and petit theft, challenged his sentence on appeal, specifically attacking the restitution order, prosecution costs, and conditions of probation. The court found that while the restitution amount was permissible, the court erred by imposing it without a hearing, improperly included attorney's fees in costs, and imposed invalid probation conditions.
The restitution amount was permissible but the court erred in imposing it without a hearing when one was requested. The attorney's fees should not have been included in prosecution costs. The substance abuse evaluation condition was invalid under the Biller test, and any special probation conditions not orally pronounced at sentencing must be stricken on remand.
[1] A court is not required to limit restitution to the statutory limit for a specific offense when there is other damage or loss caused directly or indirectly by the crime.
[2] A court must hold a restitution hearing when requested by the defendant, absent agreement by the defendant, to determine the amount of restitution.
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Join FLexlaw to unlock all legal intelligence“the court was not required to limit the amount of restitution to $300, the statutory limit for petit theft, where there was other damage or loss caused indirectly by the theft”
Establishes that restitution can exceed petit theft limits when burglary-related damages are involved
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Join FLexlaw to unlock all legal intelligenceBell was convicted of burglary of a structure and petit theft. At sentencing, the court ordered $600 in restitution based on the victim's trial testim…
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PER CURIAM.
Appellant, convicted of burglary of a structure and petit theft, was sentenced to a term of imprisonment followed by a period of probation. He challenges here only restitution, costs and conditions of probation.
At sentencing the court, without a restitution hearing as requested by Appellant, ordered restitution of $600 based on the victim’s trial testimony of the amount of damage to the structure and value of the stolen property caused by the burglary and theft. Contrary to Appellant’s argument, the court was not required to limit the amount of restitution to $300, the statutory limit for petit theft, where there was other damage or loss caused indirectly by the theft, Peralta v. State, 596 So. 2d 1220 (Fla. 5th DCA 1992), or where there was damage or loss caused directly or indirectly by the burglary. Appellant’s alternative argument (that the court should not, absent agreement by Appellant, determine the amount of restitution without a hearing when one is requested) has merit. Miller v. State, 603 So. 2d 114 (Fla. 4th DCA 1992); Pellot v. State, 582 So. 2d 124 (Fla. 4th DCA), rev. denied, 591 So. 2d 183 (Fla.1991).
The costs of prosecution assessed against Appellant should not have included $528.00 attorney’s fees to the state. Hill v. State, 618 So. 2d 796 (Fla. 2d DCA 1993); Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992), rev. denied, 618 So. 2d 211 (Fla.1993).
The special condition of probation (that Appellant receive a substance abuse evaluation and treatment and bear the cost of same) is invalid because such special condition does not meet the test of Biller v. State, 618 So. 2d 734 (Fla.1993).
Finally, the written order of probation contained special conditions not orally pronounced at sentencing. Upon remand, any special conditions that do not conform to those pronounced at sentencing, other than those authorized by statute, should be stricken. Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993).
The order of restitution, the cost judgment, and the order of probation are severally reversed and remanded for further proceedings consistent herewith.
GUNTHER, FARMER, JJ. and OWEN, WILLIAM C., Jr., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996)…rectly by the theft, see Peralta v. State, 596 So. 2d 1220 (Fla. 5th DCA 1992), [*842] and there is damage or loss caused directly or indirectly by the burglary, the conspiracy to commit burglary or the dealing in stolen property, see Bell v. State, 652 So. 2d 1192 (Fla. 4th DCA 1995), charges that, unlike theft, have no statutory máximums. The trial court properly imposed restitution for the actual damages caused by defendant’s crimes, for which he will remain convicted. Concerning the issue of restitution,…
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Epperson v. State, 955 So. 2d 642 (Fla. 4th DCA 2007)…is v. State, 816 So. 2d 759, 761-62 (Fla. 4th DCA 2002); Parker v. State, 839 So. 2d 736 (Fla. 1st DCA 2003). Further, a reasonable nexus must exist between any special condition of probation and the crime for which it is imposed. See Bell v. State, 652 So. 2d 1192 (Fla. 4th DCA 1995). The imposition of drug offender probation and related conditions, when the trial court lacks authority to do so, is cognizable in a rule 3.800(a) motion. See Anderson v. State, 941 So. 2d 446 (Fla. 4th DCA 2006); Parker. Accor…
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Barone v. State, 222 So. 3d 1235 (Fla. 5th DCA 2017)…burden of proving a victim’s loss by the preponderance of the evidence. Moore v. State, 643 So. 2d 2, 2 (Fla. 2d DCA 1994). A trial court should not enter a restitution order without a hearing absent an agreement by the defendant. See Bell v. State, 652 So. 2d 1192, 1193 (Fla. 4th DCA 1995) (“Appellant’s alternative argument (that the court should not, absent agreement by Appellant, determine the amount of restitution without a hearing when one is requested) has merit.” (citing Miller v. State, 603 So. 2d 114…
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
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Smith v. State, 606 So. 2d 427 (Fla. 1st DCA 1992)
- Gregory v. State, 616 So. 2d 174 (Fla. 2d DCA 1993)
- Pellot v. State, 582 So. 2d 124 (Fla. 4th DCA 1991)
- Euclides E. Peralta v. State, 596 So. 2d 1220 (Fla. 5th DCA 1992)
- Miller v. State, 603 So. 2d 114 (Fla. 4th DCA 1992)
- Ellis v. Ellis, 603 So. 2d 114 (Fla. 4th DCA 1992)
- C.J. v. State, 618 So. 2d 796 (Fla. 2d DCA 1993)
- Hill v. State, 618 So. 2d 796 (Fla. 2d DCA 1993)