JAMES FRANKLIN WHITTEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution orders must be consistent with the oral ruling and that a defendant has a right to be present at a restitution hearing.
The defendant agreed to pay restitution and waived causation in his plea agreement but was absent from the restitution hearing due to incarceration. H…
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PER CURIAM.
This is an appeal from two orders granting restitution. The trial court entered the two restitution orders when the defendant was not present due to his incarceration. We reverse and remand because the orders are not consistent with the oral ruling and because the defendant was not present.
In this case, the defendant agreed to pay restitution and waived causation as to that restitution in his plea agreement. He was in prison serving his sentence pursuant to that agreement at the time of the restitution hearing. His attorney objected as to the amount of restitution and to the defendant’s absence. A defendant has the right to be present at the restitution hearing, but he must expressly object to preserve the error for appeal. See J.D. v. State, 705 So. 2d 44 (Fla. 1st DCA 1997); see also Schotsch v. State, 670 So. 2d 127, 128 (Fla. 4th DCA 1996). The defendant also must present evidence that he could not pay the restitution amount or he waives that error as well. See Schotsch, 670 So. 2d at 128. The defense objected to the defendant’s absence and stated that the defendant objected to the amount but could not provide a specific objection. Though the defendant waived causation pursuant to his plea, he may have been able to argue his ability to pay the restitution had he been present.
Further, the trial court orally granted restitution of just $12,000. However, two restitution orders were entered: $12,000 to be paid to one victim and $1,000 to be paid to the other. The hearing transcript does not clarify whether the oral grant concerned both victims in the wrong amounts or just the one victim who should have received $12,000.
Because the l'ecord is unclear as to the amount and because the defendant objected to the hearing being conducted in his absence, we reverse and remand for a new restitution hearing.
REVERSED AND REMANDED.
POLEN, C.J., GUNTHER and WARNER, JJ., concur.
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Elmer v. State, 140 So. 3d 1132 (Fla. 5th DCA 2014)…riminal proceeding for which a defendant has a right to be present, it is not expressly listed in rule 3.180 as a critical stage. Three cases on point are all from the Fourth District and none considered such error fundamental. In Whitten v. State, 830 So. 2d 247 (Fla. 4th DCA 2002), the defendant agreed to pay restitution and waived causation as to that restitution in his plea agreement. At a restitution hearing, his attorney objected to the amount sought and also to the defendant’s absence. The defendant a…
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Jackson v. State, 929 So. 2d 638 (Fla. 1st DCA 2006)…BROWNING, J. Appellant challenges án order that he pay restitution. Appellant’s absence from the restitution hearing necessitates a new restitution hearing. See Whitten v. State, 830 So. 2d 247, 248 (Fla. 4th DCA 2002); Papageorge v. State, 710 So. 2d 53, 55 (Fla. 4th DCA 1998). This fact renders the other issues on appeal moot. We note what appears to be a scrivener’s error in the sentencing documents, ordering [*639] $268.96 in restituti…
Authorities Cited
- Schotsch v. State, 670 So. 2d 127 (Fla. 4th DCA 1996)
- J.D. v. State, 705 So. 2d 44 (Fla. 1st DCA 1997)