TRACY LEWELLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation because the trial court improperly delegated authority to the probation officer to establish a restitution payment schedule without judicial determination.
A trial court cannot delegate to a probation officer the authority to determine a restitution payment schedule, and revocation of probation for failure to follow such a schedule is error.
[1] A trial court cannot delegate to a probation officer the authority to establish a restitution payment schedule; such authority must be exercised by the court itself.
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Join FLexlaw to unlock all legal intelligenceLewellen was sentenced in 1988 with an order to make restitution as directed or at an amount to be determined at a restitution hearing. The probation …
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PARKER, Judge.
Tracy Lewellen appeals the trial court’s order revoking his probation and the sentence imposed. We reverse because the trial court erred in revoking Lewellen’s probation for failure to pay restitution based on a payment schedule established by the probation officer. Our reversal of the revocation order renders Lewellen’s second issue moot.
The record in this case reflects that the 1988 sentencing order provided that Lewel-len was to “[m]ake restitution as directed or at an amount to be determined at restitution hearing.” A special condition of the order of probation provided: “You will make complete restitution as directed.” At the revocation hearing, Lewellen’s first probation officer testified that the probation officers had set the payment schedule. Lewellen testified that there was no hearing to establish the payment schedule and, to his knowledge, the trial court did not set the schedule. The trial court cannot delegate to the probation officer the authority to determine a restitution payment schedule. Douglas v. State, 664 So. 2d 1099 (Fla. 2d DCA 1995). Further, it is error to revoke probation for failure to follow a payment schedule established, not by the court, but by the probation officer. Thomas v. State, 635 So. 2d 1009 (Fla. 1st DCA 1994).
Reversed and remanded.
FRANK, A.C.J., and FULMER, J., concur.
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Citator
Cited By
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Pearce v. State, 968 So. 2d 92 (Fla. 2d DCA 2007)…arce’s probation officer the authority for determining the restitution payment schedule. Florida courts have long held that the determination of a restitution payment schedule is a judicial responsibility that cannot be delegated. Lewellen v. State, 685 So. 2d 1367, 1368 (Fla. 2d DCA 1996); Douglas v. State, 664 So. 2d 1099, 1099 (Fla. 2d DCA 1995); Guinn v. State, 652 So. 2d 902, 902 [*94] (Fla. 2d DCA 1995); Briggs v. State, 647 So. 2d 182, 182 (Fla. 1st DCA 1994); see also Thomas v. State, 635 So. 2d 1009,…
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Gibson-Capo v. State (Fla. 2d DCA 2023)…stating that unless otherwise provided by the court, restitution is payable immediately). Setting a restitution payment schedule is a nondelegable judicial task. Pearce v. State, 968 So. 2d 92, 93 (Fla. 2d DCA 2007) (first citing Lewellen v. State, 685 So. 2d 1367, 1368 (Fla. 2d DCA 1996); then citing Douglas v. State, 664 So. 2d 1099, 1099 (Fla. 2d DCA 1995); then citing Guinn v. State, 652 So. 2d 902, 902 (Fla. 2d DCA 1995); and then citing Briggs v. State, 647 So. 2d 182, 182 (Fla. 1st DCA 1994)); see, e.g…
Authorities Cited
- Douglas v. State, 664 So. 2d 1099 (Fla. 2d DCA 1995)
- Thomas v. State, 635 So. 2d 1009 (Fla. 1st DCA 1994)