DAVID HUMMELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hummell appeals his resentencing for violation of community control. The court affirmed his convictions and 36-month sentence but struck restitution orders entered after the notice of appeal was filed and modified the sentence to remove the requirement that it run consecutively to unimposed future sentences.
The restitution orders are invalid and struck because they were entered after the notice of appeal was filed, at which point the trial court lacked jurisdiction. The consecutive sentencing language is also struck because a trial court cannot require a defendant to serve a sentence consecutively to a sentence not yet imposed. On remand, the trial court may impose restitution if proper procedures are followed and the defendant is given notice and opportunity to be heard.
[1] Restitution orders are defective if they do not specify the amount or the method of calculation.
[2] A trial court lacks jurisdiction to enter a restitution order after a notice of appeal has been filed.
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“Because the notice of appeal was filed before the trial court entered its restitution orders, we conclude that they were without effect.”
Establishes that restitution orders entered after notice of appeal are void and the trial court lacks jurisdiction to enter them.
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Join FLexlaw to unlock all legal intelligenceHummell was originally sentenced on October 3, 1995 for aggravated assault with a deadly weapon and criminal mischief. In September 1996, his communit…
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W. SHARP, Judge.
Hummell appeals from his sentence and restitution orders after he was resentenced for violation of community control. In September of 1996, Hummell’s community control was revoked and he was sentenced to 36 months in prison, consecutive to any other sentence. He filed a notice of appeal on September 19, 1996, and on October 2nd, the trial court entered three orders of restitution. We affirm Hummell’s convictions and sentence for aggravated assault with a deadly weapon1 and criminal mischief,2 but we strike the restitution orders, and the wording of the sentence that his sentence shall be served consecutively to any other. When Hummell was originally sentenced on October 3, 1995, no victim or amount of restitution was specified. On September 5, 1996, at the time of imposition of sentence following violation of community control, there again was no discussion concerning an order of restitution. The restitution orders rendered on October, 1996 were defective in that two did not specify an amount and one, which lists $674.75 as the amount of restitution, does not indicate how that sum was determined. Further, apparently Hummell was not given notice or opportunity to be heard concerning the restitution amount, or any victim.
Because the notice of appeal was filed before the trial court entered its restitution orders, we conclude that they were without effect. M.C.L. v. State, 682 So. 2d 1209 (Fla. 1st DCA 1996); Nguyen v. State, 655 So. 2d 1249 (Fla. 1st DCA 1995); Skaggs v. State, 620 So. 2d 1304 (Fla. 2d DCA 1993). At that point, the trial court lacked jurisdiction to enter an order requiring restitution. However, on remand the trial court may impose restitution if the state can demonstrate its right to do so has been preserved, and it follows the proper procedures concerning notice and proofs, and gives Hummell an opportunity to dispute the relevant issues.
We also agree with Hummell that the requirement that his sentence be served “consecutive” to any sentences that might be imposed in cases pending in other counties is erroneous. The written sentence actually states it will run consecutive to any other active sentence. But at the time it was imposed, Hummell had no active sentence which he was serving, although other charges were pending in other cases. A trial court cannot require a defendant to serve a sentence consecutively to a sentence not yet imposed, and it is improper to commence a sentence after the imposition of a sentence for a future, unrelated crime. Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Lyons v. State, 672 So. 2d 654 (Fla. 4th DCA 1996); Jarrett v. State, 665 So. 2d 331 (Fla. 5th DCA 1995); Marino v. State, 635 So. 2d 1068 (Fla. 5th DCA 1994); Smith v. State, 515 So. 2d 363 (Fla. 4th DCA 1987); Percival v. State, 506 So. 2d 66 (Fla. 2d DCA 1987); Teffeteller, v. State, 396 So. 2d 1171 (Fla. 5th DCA 1981); Keel v. State, 321 So. 2d 86 (Fla. 2d DCA 1975). Accordingly, we strike that language from Hummell’s sentence.
AFFIRMED in part; Restitution Orders STRICKEN; Sentence MODIFIED; REMANDED.
DAUKSCH and GOSHORN, JJ., concur. . § 784.021(l)(a), Fla.Stat. (1995).
. § 806.13(l)(a) and (b)(3), Fla.Stat. (1995).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Funchess v. State, 705 So. 2d 713 (Fla. 1st DCA 1998)…la. 1st DCA 1996). On remand, the trial court may again impose the restitution, following the proper procedures concerning notice and proofs, should the state demonstrate that its right to restitution has been preserved. See, e.g., Hummell v. State, 693 So. 2d 113 (Fla. 5th DCA 1997). MINER and WOLF, JJ„ and SHIVERS, Senior Judge, concur.…
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Tremaine v. State, 698 So. 2d 1385 (Fla. 2d DCA 1997)…n it ordered his sentence for aggravated battery to run consecutive to any sentence to be imposed in a case pending in Ohio. See Pattmon v. State, 404 So. 2d 1177 (Fla. 2d DCA 1981); Keel v. State, 321 So. 2d 86 (Fla. 2d DCA 1975); Hummell v. State, 693 So. 2d 113 (Fla. 5th DCA 1997). We, therefore, strike that portion of his sentence. We also strike probation condition 14 which states, “[t]his sentence consecutive to any VOP or conditional release from incarceration in Ohio.” See Drew v. State, 478 So. 2d 69…
Authorities Cited (13 total)
- Wallace v. State, 26 So. 713 (Fla. 1899)
- Sang Van Nguyen v. State, 655 So. 2d 1249 (Fla. 1st DCA 1995)
- Skaggs v. State, 620 So. 2d 1304 (Fla. 2d DCA 1993)
- Teffeteller v. State, 396 So. 2d 1171 (Fla. 5th DCA 1981)
- M.C.L. v. State, 682 So. 2d 1209 (Fla. 1st DCA 1996)
- Percival v. State, 506 So. 2d 66 (Fla. 2d DCA 1987)
- Kubalski v. Seaboard Coast Line R.R. Co., 321 So. 2d 86 (Fla. 4th DCA 1975)
- Keel v. State, 321 So. 2d 86 (Fla. 2d DCA 1975)
- Luke v. State, 672 So. 2d 654 (Fla. 4th DCA 1996)
- Marino v. State, 635 So. 2d 1068 (Fla. 5th DCA 1994)