FRANKLIN JAMES PICKETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1996-08-09
No. 94-2694
DAUKSCH, GOSHORN and THOMPSON, JJ., concur.
678 So. 2d 857 Florida District Court of Appeal, Fifth District (1996) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Franklin Pickett appealed his manslaughter conviction and sentence, challenging various probation conditions. The Fifth District Court of Appeal affirmed the conviction but struck several improper probation conditions due to lack of documentation, statutory support, or proper procedure.


Holding

The court affirmed the manslaughter conviction but struck the $250 investigative costs, $500 prosecution costs, and $96 First Step fee due to lack of documentation and statutory support. The court upheld the intoxicants prohibition but remanded regarding the $2,876 restitution order to allow the trial court to either strike it or conduct an evidentiary hearing on ability to pay, as required by statute at the time of sentencing.


Headnotes

[1] Law enforcement investigative costs ordered as a condition of probation must be supported by documentation and statutory authority.

[2] Costs of prosecution ordered as a condition of probation must be supported by documentation.

Previewing 2 of 6 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

Key Quotes

“Appellant was ordered to pay law enforcement investigative costs in the amount of $250. No documentation was provided for that cost, nor was there any reference to the statute supporting such an order. This was error and the cost must accordingly be stricken.”

Establishes the requirement for documentation and statutory support for cost orders in probation sentences

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Pickett was convicted of manslaughter and sentenced to eight years of probation with multiple conditions, including orders to pay $250 in law enforcem…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Upon consideration of appellee’s motion for rehearing, we grant the motion, withdraw our opinion filed March 1, 1996, and affirm appellant’s conviction and sentence for manslaughter. We agree with appellant, however, that several conditions of his eight yeai probation must be stricken.

Appellant was ordered to pay law enforcement investigative costs in the amount of $250. No documentation was provided for that cost, nor was there any reference to the statute supporting such an order. This was error and the cost must accordingly be stricken. See Madison v. State, 664 So. 2d 1140 (Fla. 5th DCA 1995); Daniels v. State, 656 So. 2d 251 (Fla. 1st DCA 1995).

Similarly, the $500 cost of prosecution that appellant was ordered to pay must be stricken because it was unsupported by documentation. See Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995); Smith v. State, 543 So. 2d 348 (Fla. 5th DCA 1989). To the extent that the condition could be read to include reimbursement of the state attorney’s fees, the condition is not proper because state attorneys’ fees are not recoverable as costs of prosecution under subsection 939.01(1), Florida Statutes (1995). Weeks v. State, 659 So. 2d 695 (Fla. 4th DCA), rev. denied, 666 So. 2d 145 (Fla.1995).

Appellant also challenges condition (7) of the probation order which prohibits him from using intoxicants to excess. He asserts that the failure of the court to orally pronounce this condition should result in its being stricken. We disagree. This provision is identical to condition (7) of the order of probation form found in Florida Rule of Criminal Procedure 3.986(e). In State v. Hart, 668 So. 2d 589 (Fla.1996), the supreme court held that oral pronouncement of the general terms of probation contained in conditions one through eleven of the form is unnecessary. See also Justice v. State, 674 So. 2d 123 (Fla.1996). Accordingly, the condition was properly imposed.

Appellant was ordered to pay restitution in the amount of $2,876 “to be dispersed to the Crimes Compensation Trust Fund at a rate to be determined by your Probation Officer through the Florida Department of Corrections.” At the sentencing hearing, the prosecutor sought restitution on the basis of section 960.17. Defense counsel objected, arguing that the State had not given notice of the request, nor had it provided any supporting documentation. He further argued that appellant did not have the ability to pay.

At the time appellant was sentenced, subsection 775.089(6) required the trial court to determine a defendant’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 concedes that the $96 First Step fee should be stricken.

We affirm appellant’s conviction, strike the probation provisions as discussed above, and remand for further proceedings consistent herewith.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

DAUKSCH, GOSHORN and THOMPSON, JJ., concur. . It should be noted that in 1995, the Legislature amended the restitution statute to require consideration of a defendant’s financial resources only at the time of enforcement, not imposition. Ch. 95-160, § 1, at 1288, Laws of Fla. This amendment did not take effect until May, 1995, and thus is not applicable to-appellant's probation order.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • State v. Shields, 31 So. 3d 281 (Fla. 2d DCA 2010)
    …(Fla. 2d DCA 2001). Further, Mr. Shields’ ability to pay the amounts ordered is a factor to be considered at the time of enforcement, not at imposition. See Hector, 784 So. 2d at 1208 (citing § 775.089(6)(b), Fla. Stat. (2000), and Pickett v. State, 678 So. 2d 857, 858 n. 1 (Fla. 5th DCA 1996)). We reverse the order on the main appeal and remand for reconsideration of the amount of restitution. Because of the pas [*283] sage of time, the victim’s recoverable expenses may be more accurately determined; thus,…
  • Esmie Hector & Diana McPherson v. State, 784 So. 2d 1207 (Fla. 2d DCA 2001)
    …d in not determining their ability to pay before imposing restitution. We disagree. Section 775.089(6)(b), Florida Statutes (2000), requires only that the ability to pay be determined at the time of enforcement, not imposition. See Pickett v. State, 678 So. 2d 857, 858 n. 1 (Fla. 5th DCA 1996). Reversed and remanded for further proceedings consistent with this opinion. THREADGILL, A.C.J., and SALCINES, J., concur.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw