I.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a juvenile has a right to be present at restitution hearings and that the trial court must consider the juvenile's ability to pay when ordering restitution.
[1] A juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that ri…
[2] A restitution order is erroneous if entered without the juvenile present and without a voluntary and intelligent waiver of the right to be present.
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Join FLexlaw to unlock all legal intelligenceAppellant, a juvenile, challenges a restitution order, arguing the trial court erred by holding the restitution hearing in his absence and by ordering…
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PER CURIAM.
In this juvenile delinquency case, appellant challenges a restitution order, contending that the trial court erred (1) in holding a restitution hearing in appellant’s absence and (2) ordering restitution without determining the amount appellant might reasonably be expected to pay. We agree and, accordingly, reverse the restitution order and remand for a new restitution hearing.
Appellant was absent from one hearing during which, over an objection by appellant’s counsel, the trial court heard testimony and determined the amount of restitution. A juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right. E.g., M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So. 2d 1233, 1234-35 (Fla. 2d DCA 2005); J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994). Because appellant was not present and there is nothing to suggest a voluntary and intel ligent waiver, he is entitled to a new restitution hearing. See M.W.G., 945 So. 2d at 600; T.A.S., 892 So. 2d at 1235.
The trial court ordered the future payment of restitution without allowing appellant to present evidence as to his future ability to pay or making an express finding regarding future ability to pay. This, too, was error. While a court may order an unemployed or incarcerated delinquent child to pay restitution without a showing of present ability to pay, it must determine what the child might reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those anticipated earnings. E.g., M.W.G., 945 So. 2d at 601; R.D.S. v. State, 844 So. 2d 720, 720-21 (Fla. 2d DCA 2003); A.J. v. State, 677 So. 2d 935, 938 (Fla. 4th DCA 1996); J.A.M. v. State, 601 So. 2d 278 (Fla. 1st DCA 1992); J.M.H. v. State, 589 So. 2d 394, 395-96 (Fla. 1st DCA 1991).
We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.
REVERSED and REMANDED, with directions.
ALLEN, WEBSTER, and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Windh v. State, 113 So. 3d 150 (Fla. 2d DCA 2013)…3d 1191, 1191 (Fla. 5th DCA 2010) (noting that “[a] juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right” (quoting I.M. v. State, 955 So. 2d 1163,1164 (Fla. 1st DCA 2007))). Here, Windh was in custody at the time of the restitution status check and thus was at the mercy of jail and/or prison officials to arrange for his appearance at the restitution hearing. Apparently no arrangements were m…
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C.Y. v. State, 989 So. 2d 1235 (Fla. 4th DCA 2008)…efore, reverse and remand for a new restitution hearing. “A juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right.” I.M. v. State, 955 So. 2d 1163, 1164 (Fla. 1st DCA 2007) (citing M.W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006)); T.A.S. v. State, 892 So. 2d 1233, 1234-35 (Fla. 2d DCA 2005); J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994). There is no basis in the record for concludi…
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L.W. v. State, 163 So. 3d 598 (Fla. 3d DCA 2015)…n the court is subsequently required to enforce the order or determine whether the juvenile violated his probation.2 E.g., S.S. v. State, 122 So. 3d 499, 502-03 (Fla. 4th DCA 2013); E.J. v. State, 1 So. 3d 251, 252 (Fla. 3d DCA 2008); I.M. v. State, 955 So. 2d 1163, 1165 (Fla. 1st DCA 2007); M.W.G. v. State, 945 So. 2d 597, 601 (Fla. 2d DCA 2006). The State argues that this issue was not preserved for appeal and is not fundamental error. We agree that the trial court’s failure to make factual findings would n…
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
- A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996)
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994)
- In the Interest of J.A.M. v. State, 601 So. 2d 278 (Fla. 1st DCA 1992)
- R.D.S. v. State, 844 So. 2d 720 (Fla. 2d DCA 2003)
- T.A.S. v. State, 892 So. 2d 1233 (Fla. 2d DCA 2005)
- Kervin Keaton v. Dugger, 589 So. 2d 394 (Fla. 1st DCA 1991)
- In the Interest of J.M.H. v. State, 589 So. 2d 394 (Fla. 1st DCA 1991)