THEODORE STAWICKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a restitution order in a probation modification case, holding that the trial court (not the probation officer) must determine the defendant's ability to pay restitution, though the probation officer may monitor circumstances and recommend a payment schedule.
The trial court, not the probation officer, must determine a defendant's ability to pay restitution, though the probation officer may monitor economic circumstances and recommend a payment schedule subject to the defendant's right to be heard.
[1] A trial court may not delegate to a probation officer the determination of a defendant's ability to pay restitution, but may direct the probation officer to monitor the d…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“However, before any such payment schedule is adopted by the [trial] court, the defendant must be afforded the opportunity to be heard on his ability to comply therewith.”
Court's statement of the procedural requirement that a defendant must have opportunity to be heard on ability to comply with a restitution payment schedule before it is adopted.
Stawicki was unemployed at a probation modification hearing where restitution was set. The trial court stated the probation officer would determine St…
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BOOTH, Judge.
This cause is before us on appeal from a probation modification order setting restitution after a hearing on same.1 At the hearing, after learning that appellant Staw-icki was unemployed, the trial court stated: “Probation officer will determine his [Staw-icki’s] ability to pay if and when he gets a job.” Had that suggested delegation of authority been included in the order under review, we would be required to reverse. Smith v. State, 613 So. 2d 1325 (Fla. 1st DCA 1992), rev. dismissed, 618 So. 2d 210 (Fla.1993); Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984).
Because it was not, we affirm, but note that the trial court (not the probation officer) must determine Stawicki’s ability to pay. As stressed in Ballance, this does not mean that the trial court cannot require the probation officer to: (1) monitor Stawicki’s economic circumstances during the probationary period; (2) notify the trial court at such a time as Stawicki appears to have the ability to commence restitution payments; and (3) furnish the court with a recommended payment schedule. “However, before any such payment schedule is adopted by the [trial] court, the defendant must be afforded the opportunity to be heard on his ability to comply therewith.” Ballance, 447 So. 2d at 976.
AFFIRMED.
LAWRENCE and VAN NORTWICK, JJ., concur. . Appellant Stawicki docs not contest the amount of restitution ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ballance v. State, 447 So. 2d 974 (Fla. 1st DCA 1984)
- Shahjahan Smith v. State, 613 So. 2d 1325 (Fla. 1st DCA 1992)