BENITA STARKS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Benita Starks appealed a restitution order of $2,195 imposed as part of her plea agreement. The court reversed the order because the trial court created a payment scheme requiring $25 monthly installments over seven years, which violated Florida law limiting restitution payment periods to the length of probation (one year in this case).
While the trial court may properly consider a defendant's future ability to pay restitution, the court erred in creating a payment scheme that extended beyond the probation period. Under Florida Statutes § 775.089(3)(b), restitution installments must not extend beyond the end of the probation period.
[1] A trial court may consider a defendant's future ability to pay restitution when determining the amount to impose.
[2] A restitution payment plan must conclude no later than the end of the period of probation if probation is ordered.
Previewing 2 of 3 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“the court erred in creating a payment scheme in violation of the mandate in section 775.089(3), Florida Statutes (1993)”
Establishes the core legal error: the trial court violated statutory requirements by imposing a payment plan extending beyond the probation period
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Join FLexlaw to unlock all legal intelligenceDefendant pled no contest to grand theft, burglary, and possession of burglary tools pursuant to a negotiated plea agreement. She received an adjudica…
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BASKIN, Judge.
Defendant appeals an order imposing restitution in the amount of $2,195. Pursuant to a negotiated plea agreement, defendant pled no contest to charges of grand theft, burglary and possession of burglary tools in exchange for an adjudication of guilt with a sentence of one year probation, and an order of restitution with early termination of probation if the restitution is paid. The parties agreed that the maximum amount of restitution would be $2,195.
At the restitution hearing, the defendant testified that she was unemployed, had a ten-year-old daughter, lived in public housing and that her sole means of support came from public assistance programs. Defendant was enrolled in a state-subsidized nursing assistant training program. She was scheduled to graduate from the training program, but had no job prospects. Finding that defendant would have the ability to pay restitution in the future, the court ordered her to pay $2,195 in twenty-five dollar monthly installments.
On appeal, defendant attacks the propriety of the amount of restitution ordered, and the payment scheme created by the trial court. Although the trial court may properly consider defendant’s future ability to pay restitution in determining the amount to impose, Barclay v. State, 651 So. 2d 218 (Fla. 3d DCA 1995); Nix v. State, 604 So. 2d 920 (Fla. 1st DCA 1992), we find that the court erred in creating a payment scheme in violation of the mandate in section 775.089(3), Florida Statutes (1993). Section 775.089 provides, inter alia:
(3) (a) The court may require that the defendant make restitution under this sec tion within a specified period or in specified installments.
(b) The end of such period or the last such installment shall not be later than:
1. The end of the period of probation if probation is ordered;
The payment plan in this case would have defendant making twenty-five dollar payments for over seven years, despite a probationary sentence of only one year. Brown v. State, 645 So. 2d 1066, 1068 (Fla. 1st DCA 1994). The restitution order is reversed and the cause remanded for entry of a restitution order consistent with this opinion and in keeping with defendant’s ability to pay.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 663 So. 2d 15 (Fla. 3d DCA 1995)…ams appeals a restitution order imposed as a condition of probation. The State concedes that the order is in error because the installment payments exceed the length of defendant’s probation. See § 775.089(3)(b)l., Fla.Stat. (1993); Starks v. State, 658 So. 2d 183, 183-84 (Fla. 3d DCA 1995); Brown v. State, 645 So. 2d 1066, 1067 (Fla. 1st DCA 1994). We therefore reverse the restitution order and remand for entry of an order consistent with the statute. As pointed out by the defendant, the probation order shou…
Authorities Cited
- Quinton NIX v. State, 604 So. 2d 920 (Fla. 1st DCA 1992)
- Brown v. State, 645 So. 2d 1066 (Fla. 1st DCA 1994)
- Barclay v. State, 651 So. 2d 218 (Fla. 3d DCA 1995)