WILLIAM ELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Ely appeals an order adding restitution as a condition of probation. The trial court erred in modifying Ely's probation to include restitution after previously entering a final order stating no restitution would be paid, as doing so violated double jeopardy protections.
The trial court lacked authority to modify the restitution order. Once the trial court entered a final order awarding no restitution, that order was final despite being based on erroneous information, and double jeopardy protections attached, prohibiting any increase to the sentence thereafter.
[1] A trial court's order awarding no restitution is final, even if based on erroneous information, and cannot be increased at a later time.
[2] Once a lawful sentence has been imposed and the sentencing hearing concluded, increasing the sentence at a later time violates the defendant's constitutional protection a…
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Join FLexlaw to unlock all legal intelligence“when the trial court entered an order awarding no restitution, that order was final, even though it was based upon erroneous information. As a consequence, double jeopardy attached and the trial court was without authority to increase Ely's sentence, even within the sixty-day modification period.”
Establishes the core holding that a final sentencing order awarding no restitution cannot be modified even within the sixty-day window due to double jeopardy protections
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Join FLexlaw to unlock all legal intelligenceEly entered a plea agreement resulting in probation with a withheld adjudication of guilt. At a restitution hearing, the prosecutor stated the victim …
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CANADY, Judge.
William Ely appeals an order that added restitution as a condition of his probation. Because the trial court was without authority to award restitution after entering a final order directing that no restitution should be paid, we reverse.
Ely entered into a plea agreement that resulted in a sentence of probation and a withheld adjudication of guilt. As part of this plea bargain, Ely agreed to pay restitution to his victim in an amount to be determined at a proceeding subsequent to the change of plea hearing. At this subsequent proceeding, the prosecutor stated, ‘We have tried to contact the victim and got no response, so no restitution.” The trial court responded: “Okay. Confirm no restitution.” The trial court entered an order reflecting that no restitution would be paid.
Sometime later, the State discovered that the victim’s timely submitted request for restitution had been misdirected and not appropriately forwarded to the prosecutor in Ely’s case. The State sought a modification of Ely’s probation to include a restitution requirement. Determining that the sixty-day modification period provided for by Florida Rule of Criminal Procedure 3.800(e) had not yet lapsed, the trial court modified Ely’s probation to include an amount of restitution. In so doing, the trial court erred.
In this case, the trial court properly reserved jurisdiction over Ely’s sentencing to determine the amount of restitution to be paid. See State v. Sanderson, 625 So. 2d 471 (Fla.1993). However, when the trial court entered an order awarding no restitution, that order was final, even though it was based upon erroneous information. As a consequence, double jeopardy attached and the trial court was without authority to increase Ely’s sentence, even within the sixty-day modification period. See Strickland v. State, 681 So. 2d 929, 930 (Fla. 3d DCA 1996) (noting that ‘[i]t is well established that where a lawful sentence has been imposed and the sentencing hearing concluded, it is a violation of the defendant’s constitutional protection against double jeopardy to increase the sentence at a later time” and holding that order increasing amount of previously ordered restitution violated prohibition against double jeopardy); see also Troupe v. Rowe, 283 So. 2d 857, 860 (Fla.1973) (holding that where sentence was imposed and “matter was concluded for all purposes” sentence imposed “could not thereafter be increased ... in violation of defendant’s constitutional guaranty not to be twice placed in jeopardy”).
We reverse and remand with instructions that the order awarding restitution be stricken.
Reversed and remanded with instructions.
CASANUEVA and SILBERMAN, JJ„ concur.
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Citator
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Kittelson v. State, 980 So. 2d 533 (Fla. 5th DCA 2008)…at 1186. In Strickland for example, the Third District held that the trial court reversibly erred when, an hour after the sentencing hearing was concluded, the court increased the amount of restitution initially ordered. Similarly, in Ely v. State, 855 So. 2d 90, 91 (Fla. 2d DCA 2003), the trial court entered a final order “reflecting that no restitution would be paid.” Later, within the sixty-day modification period, the trial court modified the defendant’s probation “to include an amount of restitution.”…
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V.B. v. State, 944 So. 2d 1185 (Fla. 1st DCA 2006)…ek restitution. Once the court has entered an order setting the amount of restitution, jeopardy attaches, notwithstanding that its entry was the result of faulty information, thereby precluding the court from modifying the amount.2 See Ely v. State, 855 So. 2d 90 (Fla. 2d DCA 2003); J.C. v. State, 632 So. 2d 1092 (Fla. 2d DCA 1994). Although the court below did not enter a formal written order, it clearly appears from our review of the record that the court accepted the state’s announcement of no restitutio…
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Annatone v. State, 198 So. 3d 1031 (Fla. 5th DCA 2016)…81 So. 2d 626, 630 (Fla. 2d DCA 2008) ("Increasing a restitution amount violates a defendant's right to not be twice placed in jeopardy, even ■ when the original restitution amount was based on a mistake or faulty information.” (citing Ely v. State, 855 So. 2d 90, 91 (Fla. 2d DCA 2003))), . The conviction and sentence do not become "final” until the. thirty-day appeal period has passed, at the earliest. ■ See, e,g. Armstrong v. State, 148 So. 3d 127, 128 (Fla. 2d DCA 2014) ("When no appeal is filed, finalit…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- State v. Gaines, 625 So. 2d 471 (Fla. 1993)
- Strickland v. State, 681 So. 2d 929 (Fla. 3d DCA 1996)