LEELYN DRYE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Drye was convicted of attempted lewd, lascivious or indecent assault upon a child and challenged his conviction on cross-examination grounds and probation conditions. The court affirmed the conviction and the condition requiring payment for the rape kit, but reversed and remanded the condition requiring payment of the victim's future counseling costs because it impermissibly delegated the determination of restitution amount to the probation officer rather than the court.
The trial court did not impermissibly restrict cross-examination. The condition requiring payment for the rape kit was properly imposed. However, the condition requiring payment of the victim's future counseling costs as directed by the probation officer was improper because it unlawfully delegated judicial responsibility to a nonjudicial officer and must be remanded for the trial court to determine the amount following a restitution hearing.
[1] A trial court may order a defendant to pay the cost of a rape kit used to examine a victim as a condition of probation.
[2] A trial court errs by delegating the determination of restitution amounts to a probation officer, as this constitutes an unlawful delegation of judicial responsibility.
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“it is error for the trial court to order restitution in an amount to be determined by the probation officer, since this constitutes an unlawful delegation of judicial responsibility to a nonjudicial officer”
Establishes the core legal error—restitution amounts must be determined by the trial court, not delegated to probation officers
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was tried on charges of kidnapping and sexual battery, resulting in conviction for attempted lewd, lascivious or indecent assault upon a chi…
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WEBSTER, Judge.
Appellant seeks review of his conviction for an attempted lewd, lascivious or indecent assault upon a child, following a trial on charges of kidnapping and sexual battery, complaining that the trial court committed reversible error when it impermissibly restricted cross-examination of certain witnesses. He also complains that, as conditions of probation, the trial court erroneously ordered him to pay $150.00 to the Sexual Assault Treatment Center for the cost of a rape kit used to examine the victim, and to pay the victim’s future counseling costs as directed by his probation officer. Having carefully reviewed the record, we conclude that the trial court did not impermissibly restrict cross-examination of any witnesses.
Accordingly, we affirm appellant’s conviction without further discussion.
We affirm, also, the condition of appellant’s probation whereby he is ordered to pay for the rape kit used to examine the victim.
However, we reverse the condition of probation ordering appellant to pay for the victim’s future counseling costs as directed by his probation officer, and remand for further proceedings.
The trial court could properly order appellant to pay the cost of the rape kit used to examine the victim directly to the medical facility that performed the examination. See, e.g., § 775.089(2)(a)l, Fla. Stat. (1995); Gladfelter v. State, 618 So. 2d 1364 (Fla.1993). Likewise, the trial court could properly order appellant to pay for the victim’s future counseling costs. § 775.089(2)(a)l & 2, Fla. Stat. (1995).
However, “it is error for the trial court to order restitution in an amount to be determined by the probation officer, since this constitutes an unlawful delegation of judicial responsibility to a nonjudicial officer.” Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986).
Accordingly, we reverse the condition of probation ordering appellant to pay the victim’s future counseling costs as directed by his probation officer. On remand, the trial court is directed to amend that condition to provide that appellant shall pay the victim’s future counseling costs in an amount to be determined by the trial court following a restitution hearing. See, e.g., Taylor v. State, 615 So. 2d 230 (Fla. 1st DCA 1993).
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
ALLEN and MICKLE, JJ., concur.
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Strout v. State, 180 So. 3d 1052 (Fla. 5th DCA 2015)…is reasonably foreseeable to.a defendant who sells stolen property and is therefore recoverable as restitution), and as an indirect result of Strout’s crime (the. counselling later needed for the daughter and Campbell to reunite). Cf. Drye v. State, 691 So. 2d 1168 (Fla. 1st DCA 1997) (“[T] he trial court could properly order appellant to pay for the victim’s future counseling costs.”). However, Strout' is correct that Campbell’s attorneys’ fees associated with the custody proceedings are not sufficiently cau…
Authorities Cited
- Gladfelter v. State, 618 So. 2d 1364 (Fla. 1993)
- Masslieno v. State, 498 So. 2d 628 (Fla. 1st DCA 1986)
- Taylor v. State, 615 So. 2d 230 (Fla. 1st DCA 1993)