SHERRIE REA GANDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for third-degree murder was affirmed, but the court reversed the restitution provision delegating payment schedule authority to the probation officer, holding that setting restitution terms is a non-delegable judicial function.
A trial court cannot delegate to a probation officer the authority to set a restitution payment schedule, as this constitutes a non-delegable purely judicial function.
[1] A trial court cannot delegate to a probation officer the authority to set a restitution payment schedule, as this constitutes a non-delegable purely judicial function tha…
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Join FLexlaw to unlock all legal intelligence“even without a defense objection, trial court cannot delegate to probation officer the sole authority to perform 'a purely judicial function'”
Court citing Larson v. State regarding non-delegable judicial functions in restitution matters
Sherrie Rea Gandy was indicted for the shooting death of her husband, Terry Gandy, and was convicted by jury of third-degree felony murder with a fire…
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MICKLE, Judge.
The appellant, who was indicted for the shooting death of her husband, Terry Gandy, appeals 1) her conviction for third-degree (felony) murder with a firearm following a jury trial, and 2) certain terms of restitution.
We conclude that the evidence supports the jury’s verdict, and that any evidence relating to uncharged collateral crimes was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
As to the issues relating to the terms and conditions of restitution, most of which were not properly preserved by a specific objection below, we reverse only that portion of Condition (13) of the restitution order directing payment “on a schedule as directed by your Probation Officer.” That procedure relates to a non-dele-gable “purely judicial function.” Larson v. State, 572 So. 2d 1368, 1371 (Fla.1991) (even without a defense objection, trial court cannot delegate to probation officer the sole authority to perform “a purely judicial function”); Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991) (trial court improperly delegated judicial functions by allowing probation officer to set restitution payment schedule and to determine amount of restitution).
We note also the need to correct a scrivener’s error on the judgment form, which should indicate section 782.04(4), not section 784.04(4), Florida Statute, as the offense statute number. AFFIRMING conviction, AFFIRMING sentence in part, and REVERSING and REMANDING sentence in part with directions for the trial court to set a schedule for payment of $22,275 in restitution and to correct a clerical error. ALLEN and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Spor v. State, 114 So. 3d 1068 (Fla. 5th DCA 2013)…the determination of a restitution payment schedule is a judicial responsibility that cannot be delegated.” Pearce v. State, 968 So. 2d 92, 93 (Fla. 2d DCA 2007). See also Edwards v. State, 892 So. 2d 1192, 1194 (Fla. 5th DCA 2005); Gandy v. State, 695 So. 2d 792, 793 (Fla. 1st DCA 1997); White v. State, 606 So. 2d 1265, 1266 (Fla. 1st DCA 1992); Bowen v. State, 590 So. 2d 1067 (Fla. 5th DCA 1991). REVERSED and REMANDED. PALMER and TORPY, JJ., concur.…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)
- Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991)