KENNETH OWENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Owens appealed a restitution order imposed after his guilty pleas to burglary and criminal mischief. The court affirmed the restitution in principle but reversed and remanded to correct mathematical errors that had inflated the restitution amount by $77.50.
The court affirmed the restitution order in principle as supported by preponderance of evidence, but reversed and remanded to correct three calculation errors that overstated the amount by $77.50 (reducing the total from $2,785.69 to $2,708.19). The court held that Owens' second issue regarding stolen cigarettes was not preserved for review, and that ability to pay is considered only upon enforcement of the restitution order under the 1995 amended statute.
[1] A restitution order is supported by competent substantial evidence when the amount is proven by a preponderance of the evidence.
[2] A defendant must contemporaneously object to the inclusion of an item of restitution to preserve the issue for appellate review.
Previewing 2 of 5 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“We conclude that the state proved the amount of restitution ordered by a preponderance of the evidence, with the exception of the following two sums that were incorrectly calculated and one sum that is unsupported by the evidence.”
Establishes that while restitution amounts were generally supported by evidence, specific mathematical errors required correction.
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Join FLexlaw to unlock all legal intelligenceOwens entered a game room and vandalized various items including pool tables, machines, and video equipment on August 29, 1995. He pled no contest to …
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MICKLE, Judge.
Kenneth Owens appeals a restitution order, claiming that (1) the amount imposed was unsupported by competent substantial evidence, (2) the lower court erred in ordering restitution for certain stolen items where there was no significant relationship shown between this loss and the offenses for which he was convicted, and (8) the court failed to consider his ability to pay. We affirm in part, reverse in part, and remand.
Owens pled no contest to one count of burglary and one count of criminal mischief. The charges arose from Owens’ unlawful act of entering into a game room and vandalizing various items located therein. The offenses were committed on August 29, 1995. The plea agreement provided that restitution would be determined at a hearing. Based upon the testimony of the owner of the damaged items, the court set the amount of restitution at $2,785.69, comprised of the following:
$ 148.69 Pool table parts
$ 300.00 Owner’s Labor (8 hrs. @ $37.50/hr)
$ 120.00 Repairman’s Wages (16 hrs. @ $7.50/hr)
$ 600.00 Cigarette Machine
$ 120.00 Cost of Cigarettes (8 cartons @ 16.00)
$ 22.00 Repair to Video
$ 75.00 Repair to Coke Machine
$1400.00 CD Juke Box
We conclude that the state proved the amount of restitution ordered by a preponderance of the evidence, with the exception of the following two sums that were incorrectly calculated and one sum that is unsupported by the evidence. With regard to the pool tables, the cost of parts ($90 for doors and locks, $39.98 for two coin chutes, $6.21 for chrome piece, and $2.50 for door piece) totalled $138.69, not $148.69. With regard to labor costs to repair the pool tables, the correct amount ordered should have been $75 for the repairman’s work and not $120, as the testimony reflects that he worked only 10 hours, not 16 hours (10 hrs. @ 7.50/hr).1 Last, with regard to the total cost to repair the soda machine, the labor cost equalled $37.50 and the part $15, totalling $52.50. The record does not support the additional $22.50 ordered. In sum then, we reverse and remand with directions that the order of restitution be reduced by $77.50, bringing the corrected total amount to $2,708.19.
Owens’ second issue, that the lower court erred in ordering him to pay restitution for stolen cigarette cartons where there was no significant relationship shown between this loss and the offenses for which he was convicted, was not preserved for review. See Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992) (contemporaneous objection must be made in order to preserve the right to appeal the inclusion of an item of restitution).
As his third issue, Owens claims that the trial judge erroneously failed to consider evidence of his inability to pay restitution. However, the 1995 legislature amended section 775.089(6), Florida Statutes, effective May 8, 1995, to provide that a defendant’s ability to pay is to be considered only when there is an attempt to enforce the restitution order. See Ch. 95-160, § 1, at 1623, Laws of Fla. Hence, no reversible error has been demonstrated.
AFFIRMED in part, REVERSED in part and REMANDED with directions.
WEBSTER and LAWRENCE, JJ., concur. . The state concedes that these two miscalculations must be corrected.
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…being enforced — not when restitution is being imposed. See State v. Shields, 31 So. 3d 281, 282 (Fla. 2d DCA 2010) (“[AJbility to pay the amounts ordered is a factor to be considered at the time of enforcement, not at imposition.”); Owens v. State, 679 So. 2d 44, 45 (Fla. 1st DCA 1996) (“[A] defendant’s ability to pay is to be considered only when there is an attempt to enforce the restitution order.”); Nieves v. State, 678 So. 2d 468, 470 (Fla. 5th DCA 1996) (“[Effective May 8, 1995, section 775.089(6) was…1 / 2
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J.S. v. State, 717 So. 2d 175 (Fla. 4th DCA 1998)…attorneys agreed that lost wages were recoverable. Having failed to object to this restitution issue at the hearing, appellant failed to preserve this issue for appellate review. See D.B. v. State, 689 So. 2d 420 (Fla. 4th DCA 1997); Owens v. State, 679 So. 2d 44 (Fla. 1st DCA 1996); Gliszczynski v. State, 654 So. 2d 579 (Fla. 5th DCA 1995); M.A.V. v. State, 643 So. 2d 81 (Fla. 2d DCA 1994); Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993); Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992). This finding…
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D. B. v. State, 689 So. 2d 420 (Fla. 4th DCA 1997)…. We affirm the trial court’s decision, based on the evidence presented, finding that appellant committed the offense of battery. The restitution issue raised was not preserved for appeal because of the failure to object below. See Owens v. State, 679 So. 2d 44 (Fla. 1st DCA 1996). The state concedes, however, that we must remand for the trial court to correct the written disposition order to reflect the trial court’s oral findings that appellant committed the offense of battery and not aggravated battery.…
Authorities Cited
- Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992)