STATE OF FLORIDA, APPELLANT,
v.
JUSTIN WITTHAUS, APPELLEE
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The State appeals from a trial court's order striking a restitution order imposed as a condition of probation. The court holds that a trial court has jurisdiction to determine the amount of restitution beyond a self-imposed deadline when restitution is timely imposed as an original condition of probation within sixty days of sentencing.
The trial court did not lose jurisdiction to determine the restitution amount. A self-imposed procedural deadline does not divest the court of jurisdiction to determine restitution when restitution is timely imposed as an original condition of probation within sixty days of sentencing. The court may determine the amount of restitution beyond the sixty-day statutory period if the order of restitution itself was entered timely.
[1] An order of restitution must be imposed at the time of sentencing or within sixty days thereafter, but if an order of restitution has been entered in a timely manner, a c…
[2] If restitution is made an original condition of probation, a trial court can properly determine the amount of restitution at a later date.
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Join FLexlaw to unlock all legal intelligence“[A]n order of restitution must be imposed at the time of sentencing or within sixty days thereafter. If an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.”
Establishes the controlling legal standard that timing of determining the restitution amount is separate from the deadline for imposing restitution as an ordered condition.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn April 19, 2005, Witthaus was involved in incidents resulting in charges for aggravated assault, driving under the influence, and leaving the scene …
The full statement of facts, procedural history, and disposition for this case are member content.
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SALCINES, Judge.
The State appeals from the trial court’s denial of restitution.1 We reverse.
Witthaus was charged with aggravated assault, driving under the influence, and leaving the scene of a crash involving property damage as a result of incidents which occurred on April 19, 2005. Witthaus appeared before the trial court on June 9, 2005, for a plea and sentencing hearing. Witthaus entered a plea to the three charged offenses agreeing, among other things, to make restitution to the victim of the aggravated assault.
Regarding the aggravated assault, during the preliminary discussions between counsel and the trial court prior to the acceptance of the plea, the trial court asked the prosecutor how much restitution was owed to the victim. The prosecutor did not know the entire amount at that time. The trial court indicated that it would order restitution, but since the amount to be imposed was unknown, it would rely on the State to set a status check and would “retain” for ninety days to set a restitution amount. After accepting the plea, the trial court pronounced “two years probation, restitution; I’ll retain on the issue of how much restitution.”
That oral pronouncement took place at the sentencing hearing on June 9, 2005. A written order of probation was filed June 29, 2005; it included a condition requiring Witthaus to pay restitution “in an amount to be determined” and further stated “the restitution shall be determined within 90 days.” A written order setting the amount of restitution was rendered on September 30, 2005, after the ninety-day period had elapsed.
Witthaus filed a motion to strike the order setting restitution arguing that the trial court announced it would retain jurisdiction for ninety days and that the State presented the restitution amount outside the ninety-day period set by the trial court. Witthaus’s motion was granted, and the order setting restitution was stricken.
The trial court erred in striking that order. “[A]n order of restitution must be imposed at the time of sentencing or within sixty days thereafter. If an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.” State v. Sanderson, 625 So. 2d 471, 473 (Fla.1993).
Furthermore, if restitution is made an original condition of probation, a trial court can properly determine the amount of restitution at a later date. Gladfelter v. State, 618 So. 2d 1364, 1365 (Fla.1993).
Section 948.03(1), Florida Statutes (2005), sets forth standard terms and conditions of probation. One of the standard conditions provides that a probationer “[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court.” § 948.03(l)(e).
As opined by our sister court, the foregoing statutory provision “does not specify when the court must determine the amount, and we conclude that to be a procedural matter falling within the discretion of the trial court.” McCaskill v. State, 520 So. 2d 664, 665 (Fla. 1st DCA 1988). Witthaus agreed to make restitution as part of his plea agreement, the trial court ordered restitution at sentencing, and restitution was timely imposed as a condition of probation within sixty days of sentencing. Although the trial court imposed a deadline of ninety days in which to determine the amount of restitution, that self-imposed deadline did not act to divest the trial court of its jurisdiction to determine the amount of restitution. Instead, the trial court’s self-imposed deadline was a matter of procedure falling within the purview of its discretion. See McCaskill, 520 So. 2d at 665.
At the time the trial court entered the order setting the amount of restitution to be made by Witthaus — an amount to be paid by Witthaus as a condition of his probation for a probationary sentence then in effect — it had jurisdiction to make such a determination. Cf. Davis v. State, 685 So. 2d 1357, 1358 (Fla. 2d DCA 1996) (holding trial court lacked jurisdiction to amend restitution order; “while the court can set the amount of restitution more than sixty days after entry of an order imposing restitution, the court cannot modify an already-ordered amount of restitution beyond the sixty day period”).
In the present case, the trial court not only timely ordered restitution, see L.O. v. State, 718 So. 2d 155, 158 (Fla.1998) (recognizing oral pronouncement as “sufficient to constitute an initial order of restitution”), it also timely imposed a condition of probation requiring restitution in an amount to be determined. See State v. Hiscox, 677 So. 2d 862, 863 (Fla. 2d DCA 1996) (holding “because restitution was made an original condition of the probation order which was filed fifteen days after the sentencing hearing, the trial court could properly determine the amount of restitution at a later date”).
Further, although the trial court had authority to determine the amount of restitution under these facts regardless of an express reservation of jurisdiction, the trial court’s pronouncement adequately reserved jurisdiction to determine the amount of restitution at a later date. See L.O., 718 So. 2d 155 (reaffirming holding in Sanderson, 625 So. 2d 471); Albury v. State, 779 So. 2d 423 (Fla. 2d DCA 2000) (holding trial court had jurisdiction to enter restitution order; although restitution hearing took place after the forty-five day hearing date set by the trial court and more than sixty days after pronouncement of sentence, trial court’s pronouncement adequately reserved jurisdiction); Skaggs v. State, 620 So. 2d 1304, 1304-05 (Fla. 2d DCA 1993) (opining, in dicta, that trial court’s pronouncement reserving jurisdiction for sixty days to determine whether to impose restitution was sufficient to reserve jurisdiction to make such determination sixty-three days later).
Accordingly, we reverse the order striking the restitution order and remand for reinstatement of the order setting the amount of restitution.
Reversed and remanded with directions.
NORTHCUTT and VILLANTI, JJ., Concur. . The order appealed is an order that struck a previously entered restitution order setting the amount of restitution to be made as a condition of probation. It had the practical effect of denying restitution. Thus, the order was essentially an order denying restitution. Accordingly, we review this matter as an appeal from an order denying restitution. See State v. Hitchmon, 678 So. 2d 460, 462 (Fla. 3d DCA 1996) (finding order striking condition of probation that requires restitution is properly viewed as order denying restitution appealable by the state).
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State v. Maddex, 159 So. 3d 267 (Fla. 4th DCA 2015)…appeal “[a]n order denying restitution under s. 775.089.” § 924.07(1)(k), Fla. Stat. (2012). Under Rule 9.140(c)(1)(O), the State may appeal an order “denying restitution.” Fla. R. App. P. 9.140(c)(1)(O). The defendant relies on State v. Witthaus, 944 So. 2d 505 (Fla. 2d DCA 2006) to argue we lack jurisdiction. There, the court ordered the defendant to pay restitution as part of a plea agreement and reserved the right for ninety days to set the amount. Id. at 506. The trial court entered an order determinin…
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State v. Courtnei Alexis Bryant (Fla. 1st DCA 2022)…the plea agreement. In the closest case factually to this one, the Second District considered whether a restitution amount could be set after the parties missed a deadline that was denominated to be “jurisdictional” at sentencing. State v. Witthaus, 944 So. 2d 505, 506 (Fla. 2d DCA 2006). As in this case, the trial court in Witthaus ordered restitution but announced that it would retain jurisdiction for a limited time, ninety days, to establish the amount. Id. The Witthaus court delegated to the State the res…
Authorities Cited
- State v. Gaines, 625 So. 2d 471 (Fla. 1993)
- McCASKILL v. State, 520 So. 2d 664 (Fla. 1st DCA 1988)
- L.O. v. State, 718 So. 2d 155 (Fla. 1998)
- Gladfelter v. State, 618 So. 2d 1364 (Fla. 1993)
- Skaggs v. State, 620 So. 2d 1304 (Fla. 2d DCA 1993)
- State v. Hiscox, 677 So. 2d 862 (Fla. 2d DCA 1996)
- State v. Hitchmon, 678 So. 2d 460 (Fla. 3d DCA 1996)
- Albury v. State, 779 So. 2d 423 (Fla. 2d DCA 2000)
- Davis v. State, 685 So. 2d 1357 (Fla. 2d DCA 1996)