YOLANDA DENISE EXILORME A/K/A YOLANDA PINKNEY A/K/A YOLANDA PICKNEY A/K/A YOLANDA PINCKNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Yolanda Exilorme was ordered to pay restitution of $2,215.24 to Burdines Department Stores following her no-contest plea to grand theft. The appellate court reversed, holding that the trial court erred by imposing a specific restitution amount without conducting the hearing required by Florida Statute § 775.089 to determine the amount owed and the defendant's ability to pay.
The trial court erred by imposing restitution without the hearing required by § 775.089(7). A hearing is mandatory before restitution is imposed to determine both the amount owed to the victim and the defendant's ability to pay, and the defendant is entitled to a hearing to establish any offset for sums already paid.
[1] A trial court commits reversible error by imposing restitution without providing the defendant with notice or a hearing.
[2] A sentencing hearing does not automatically satisfy the statutory requirement for a restitution hearing.
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“Section 775.089(7) requires a hearing, before restitution is imposed, to determine the amount owed to the victim as well as the defendant's ability to pay. It is reversible error to impose restitution without notice or a hearing.”
Establishes the mandatory nature of the restitution hearing requirement and that failure to conduct one is reversible error.
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Join FLexlaw to unlock all legal intelligenceExilorme was arrested for grand theft at Burdines and entered into a waiver of prosecution agreement with Burdines agreeing to restitution and making …
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VILLANTI, Judge.
Yolanda Exilorme challenges the trial court’s entry of a final judgment of restitution ordering her to pay Burdines Department Stores (Burdines) $2215.24. Because the trial court erred in establishing a restitution amount without a restitution hearing as required by section 775.089, Florida Statutes (2002), we reverse and remand for further proceedings.
Exilorme was arrested for grand theft arising from an incident at Burdines. Thereafter, she entered into a waiver of prosecution agreement with Burdines, wherein she agreed to a restitution amount and allegedly made some payments pursuant to its terms. Because the waiver of prosecution was not binding on the State, there is no debate that the ensuing prosecution was nevertheless valid. However, once the State exercised its discretion to prosecute, Exilorme stopped making further restitution payments on advice of her defense attorney.
Ultimately, Exilorme entered an open, no contest plea to grand theft. In support of her request for mitigation, she submitted a copy of her agreement with Burdines and her repayment schedule. At the sentencing hearing, Exilorme again referred to her agreement with Burdines and indicated she had paid a portion of the restitution amount.
The trial court sentenced Exilorme to forty-eight months’ imprisonment, and although there was discussion concerning restitution, there was no agreement as to an actual balance due, nor was an amount set at that time. Under these circumstances, it cannot be said that the sentencing hearing also constituted a restitution hearing as contemplated by section 775.089, nor does the State advocate this position. Two days later, without conducting any other hearing or giving any further notice or opportunity to object, the trial court entered a final judgment of restitution ordering Exilorme to pay Bur-dines $2215.24, which apparently represented the full amount she had agreed to pay in the waiver of prosecution agreement. No mention of any offset for the alleged partial payments was noted. This was error.
Section 775.089(7) requires a hearing, before restitution is imposed, to determine the amount owed to the victim as well as the defendant’s ability to pay. It is reversible error to impose restitution without notice or a hearing. Allen v. State, 718 So. 2d 1264 (Fla. 2d DCA 1998); Faulkner v. State, 620 So. 2d 794 (Fla. 1st DCA 1993); Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993).
The State argues that State v. Sanderson, 625 So. 2d 471 (Fla.1993), al6lowed the trial court to forego the hearing under the instant facts. The issue in Sanderson was whether a trial court lost jurisdiction to determine the amount of restitution if it had not done so within sixty days of imposing sentence. Id. at 472. The Florida Supreme Court held that the trial court must order restitution at sentencing or within sixty days of sentencing and that if it did, it would not lose jurisdiction to determine the amount later. Id. at 473. Exilorme does not contend that the court was without jurisdiction to order restitution, only that the amount was determined without a hearing. Nothing in Sanderson contemplates determining the amount of restitution without a hearing.
The State also argues that because Exilorme admitted the total amount owed to Burdines as part of her request for mitigation, no hearing was required. This might be correct if Exilorme were arguing that her plea did not include an agreement to pay any restitution. However, in this context, Exilorme is contesting only the amount of restitution, not her liability to pay whatever restitution is actually found owing at a properly held and noticed hearing.
Subsections 775.089(6) and (7) require a hearing to determine both the defendant’s ability to pay and the amount owed. While ability to pay is obviously less important in restitution lien cases when there is no probation to enforce collection, a hearing is still required. See Denmark v. State, 588 So. 2d 324, 325 (Fla. 4th DCA 1991). More important, Exilorme is entitled to a hearing to determine the offset amount for any sums she has paid against the total restitution due. See Bowman v. State, 698 So. 2d 615 (Fla. 2d DCA 1997). Therefore, we reverse and remand with instructions to the trial court to conduct a hearing to determine the amount of restitution due in accordance with section 775.089.
Reversed and remanded.
DAVIS and CANADY, JJ., concur.
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…restitution order and remand for an evidentiary hearing.” (citing Filmore v. State, 656 So. 2d 535 (Fla. 4th DCA 1995))), review denied 39 So. 3d 320 (Fla. 2010), and cert. denied, - U.S. -, 131 S.Ct. 476, 178 L.Ed.2d 302 (2010); Exilorme v. State, 857 So. 2d 339, 340 (Fla. 2d DCA 2003) ("Section 775.089(7) requires a hearing, before restitution is imposed, to determine the amount owed to the victim as well as the defendant’s ability to pay.... Subsections 775.089(6) and (7) require a hearing to determine bo…
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Iaconetti v. State, 869 So. 2d 695 (Fla. 2d DCA 2004)…esented concerning the proper amount of restitution. We agree. Section 775.089(7), Florida Statutes (2002), requires the trial court to hold a hearing before restitution is imposed to determine the amount of restitution. See also Exilorme v. State, 857 So. 2d 339, 340 (Fla. 2d DCA 2003); Allen v. State, 718 So. 2d 1264, 1265 (Fla. 2d DCA 1998). The defendant is entitled to notice of this hearing and an opportunity to be heard. Trice v. State, 655 So. 2d 1270, 1271 (Fla. 2d DCA 1995). It is reversible error t…
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Carter v. State, 23 So. 3d 1238 (Fla. 4th DCA 2009)…ion to the victim ... unless it finds clear and compelling reasons not to.” “Subsections 775.089(6) and (7) require a hearing!, before restitution is imposed,] to determine both the defendant’s ability to pay and the amount owed.” Exilorme v. State, 857 So. 2d 339, 340 (Fla. 2d DCA 2003). This case is controlled by L.S. v. State, 975 So. 2d 554 (Fla. 4th DCA 2008). In the final hearing on a delinquency petition in that case, the owner of the vehicle testified as to the dollar amount of the damage done to his…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Gaines, 625 So. 2d 471 (Fla. 1993)
- Smith v. Fla. Unemployment Appeals Comm'n & DGP Invs., Inc., 588 So. 2d 324 (Fla. 4th DCA 1991)
- Bowman v. State, 698 So. 2d 615 (Fla. 2d DCA 1997)
- Burch v. State, 617 So. 2d 846 (Fla. 4th DCA 1993)
- State v. Pawloski, 718 So. 2d 1264 (Fla. 2d DCA 1998)
- Allen v. State, 718 So. 2d 1264 (Fla. 2d DCA 1998)
- Faulkner v. State, 620 So. 2d 794 (Fla. 1st DCA 1993)