C.Y., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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C.Y., a juvenile, appeals a restitution order, arguing he did not knowingly and intelligently waive his right to be present at the restitution hearing. The court reverses and remands, holding that the record lacks evidence of a valid waiver and that the trial court failed to make required findings about the juvenile's ability to pay.
The court held that C.Y. did not knowingly and intelligently waive his right to be present at the restitution hearing because the record lacked evidence of notice of the hearing and intentional avoidance or voluntary absence. The court also noted the absence of findings concerning the juvenile's ability to earn and pay restitution as required by statute.
[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 r…
[2] A defendant must have notice of a hearing and intentionally avoid it or leave court during the proceeding to voluntarily waive their right to be present.
Previewing 2 of 5 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“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.”
Establishes the fundamental constitutional right at issue in the appeal
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Join FLexlaw to unlock all legal intelligenceC.Y. was a juvenile facing restitution. The sheriff attempted to serve C.Y. with notice of the restitution hearing at the last address the juvenile ha…
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PER CURIAM.
We deny the state’s motion for rehearing, but withdraw our previous opinion filed July 9, 2008, and substitute the following opinion in its place.
C.Y. appeals from a restitution order. The record reflects that C.Y. did not knowingly and intelligently waive his right to be present at his restitution hearing. We, therefore, 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 concluding that C.Y.’s absence from the restitution hearing constituted a waiver of his right to be present. “In order for a defendant to voluntarily absent himself from a hearing, a defendant must have had notice of the hearing and intentionally avoided it or left the court during the proceeding.” Baker v. State, 979 So. 2d 453, 455 (Fla. 2d DCA 2008) (citing Capuzzo v. State, 596 So. 2d 438, 440 (Fla.1992)).
The trial court concluded that C.Y. had absconded because the sheriff tried to serve the juvenile with the date of the restitution hearing at the last address the juvenile had given, which turned out to be a “bad address.” The state argues that C.Y.’s failure to inform the court of his correct address while he was on probation and while a restitution hearing was pending constitutes substantial competent evidence that C.Y. waived his presence at the restitution hearing.
However, there was no sworn evidence about C.Y.’s absence or of an intent to flee the jurisdiction.1 We also note the absence of findings concerning the juvenile’s ability to earn and to pay.
Section 985.437(2), Florida Statutes, provides that the amount of restitution in a juvenile case “may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” K.T.M. v. State, 969 So. 2d 542, 543 (Fla. 2d DCA 2007); see also J.K. v. State, 695 So. 2d 868, 870 (Fla. 4th DCA 1997) (citing the predecessor statute).
STONE, FARMER and KLEIN, JJ., concur. . See Capuzzo, 596 So. 2d at 440 ("Where a defendant absents himself or herself by flee ing the court's jurisdiction, that defendant cannot claim lack of an express waiver. In such circumstances, securing an express waiver is impossible and the defendant’s actions constitute a valid waiver.”).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Thar v. State, 8 So. 3d 1204 (Fla. 2d DCA 2009)…e to appear. Furthermore, if the trial court was going to rely on the probationary requirement that Thar notify the State about her changes in address and telephone number, sworn evidence to that effect should have been presented. See C.Y. v. State, 989 So. 2d 1235 (Fla. 4th DCA 2008). [*1206] Accordingly, it was error for the trial court to find that Thar had waived her presence at the hearing and to set a restitution amount without allowing her the opportunity to be heard. We reverse the order of restitution…
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S.S. v. State, 122 So. 3d 499 (Fla. 4th DCA 2013)…CA 1996). In the absence of such findings, the appellate court must reverse the restitution order and remand for a hearing to determine the child’s ability to pay.4 See K.T.M. v. State, 969 So. 2d 542, 543 (Fla. 2d DCA 2007); see also C.Y. v. State, 989 So. 2d 1235, 1237 (Fla. 4th DCA 2008) (noting the absence of findings of ability to pay in a juvenile restitution order). These findings are absent from the court’s orders in this case. In accordance with the foregoing authorities, we reverse for a hearing in w…
Authorities Cited
- Capuzzo v. State, 596 So. 2d 438 (Fla. 1992)
- 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)
- J.K. v. State, 695 So. 2d 868 (Fla. 4th DCA 1997)
- Baker v. State, 979 So. 2d 453 (Fla. 2d DCA 2008)
- T.A.S. v. State, 892 So. 2d 1233 (Fla. 2d DCA 2005)
- I.M. v. State, 955 So. 2d 1163 (Fla. 1st DCA 2007)
- K.T.M v. State, 969 So. 2d 542 (Fla. 2d DCA 2007)