DAVID NOONAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Noonan appeals his arson and insurance fraud convictions. The Florida appellate court affirmed his convictions but reversed the restitution order and struck the public defender lien and investigative costs due to lack of evidentiary support.
The court affirmed Noonan's convictions but reversed the restitution order because no evidence supported the amount imposed despite Noonan's objection and request for proof. The court also struck the public defender lien and investigative costs due to lack of justification and notice. The defendant does not waive the right to require proof of restitution merely by waiving presence at the hearing.
[1] A defendant is entitled to a restitution hearing when they object to the amount of restitution and request proof from the State.
[2] Waiving the right to be present at a restitution hearing does not waive the right to require the State to prove the amount of restitution.
Previewing 2 of 4 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“When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to separate hearing.”
Establishes the legal standard that defendants have the right to a hearing with evidentiary proof when they contest restitution.
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Join FLexlaw to unlock all legal intelligenceNoonan was convicted of arson and burning to defraud an insurance company. At sentencing, Noonan requested a restitution hearing but waived his right …
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BLUE, Judge.
David Noonan appeals his convictions for arson and burning to defraud an insurance company, raising five issues, two of which have merit. We affirm the remaining issues without discussion. We reverse the imposition of restitution because the trial court entered the order of restitution without any evidence to support the amount, over the objection of Noonan. We also reverse the imposition of the public defender lien and investigative costs.
At sentencing, Noonan requested a restitution hearing but waived his right to be present at the hearing. When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to separate hearing. See Lunsford v. State, 637 So. 2d 348 (Fla. 5th DCA 1994); Goodson v. State, 400 So. 2d 791, 793 (Fla. 2d DCA 1981). Waiving the right to be present at the restitution hearing does not waive the right to require the State to prove the amount of restitution. Judge Webb, at the sentencing hearing, acknowledged that Noo-nan wished to contest the amount of restitution. The party requesting restitution was not present at sentencing and no evidence was offered as to the amount of restitution other than the State’s representation of the amount claimed. In spite of Noonan’s objection and the lack of evidence, the court ordered restitution in the amount of $46,970.51, the amount suggested by the State. We reverse the order of restitution and remand for a proper restitution hearing. Although Noonan had previously waived his right to attend the restitution hearing, we conclude he should be allowed the opportunity to appear unless he again waives that right.
The trial court improperly imposed a $2000 public defender lien without a request for a lien by the public defender, documentation or other justification for the amount imposed, or notice to Noonan of his right to contest the amount of the lien. The court also erred by imposing $80 in investigative costs without a request for the costs or supporting documentation in the record. Accordingly, we strike the assessments of the public defender lien and the investigative costs.
Noonan’s convictions are affirmed; the order of restitution is reversed and remanded for hearing; the public defender lien, and investigative costs are stricken.
ALTENBERND, A.C.J., and GREEN, J., concur.
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Bryant v. State, 99 So. 3d 607 (Fla. 2d DCA 2012)…te has the burden of proving that the defendant knowingly and voluntarily waived the right to be present” at a restitution hearing). The State also acknowledges that no evidence was presented to establish the amount of the lien. See Noonan v. State, 709 So. 2d 635 (Fla. 2d DCA 1998) (reversing an order of restitution where no evidence was offered as to the amount of restitution other than the State’s representation of the amount claimed). Accordingly, we vacate the order modifying Bryant’s probation and imp…
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State v. Dixon, 308 So. 3d 1121 (Fla. 2d DCA 2020)…(Fla. 5th DCA 2001))); Strickland v. State, 746 So. 2d 1189, 1190 (Fla. 2d DCA 1999) ("When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to separate hearing." (quoting Noonan v. State, 709 So. 2d 635 (Fla. 2d DCA 1998))); Gardipee v. State, 620 So. 2d 255, 256 (Fla. 2d DCA 1993) (reversing order imposing restitution where appellant objected to amount of restitution and trial court initially stated it would permit a restitution hearing but failed…
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Strickland v. State, 746 So. 2d 1189 (Fla. 2d DCA 1999)…ion 775.089(7) contemplates an evidentiary hearing when there is a dispute as to restitution. “When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to separate hearing.” Noonan v. State, 709 So. 2d 635 (Fla. 2d DCA 1998). At the sentencing hearing, Strickland requested a hearing on the $10,000 restitution amount. The assistant state attorney referred to a document reflecting the amount of money that the Fund had paid. That document, however, is no…
Authorities Cited
- Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981)
- Lunsford v. State, 637 So. 2d 348 (Fla. 5th DCA 1994)