JOSEPH SIMINSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Siminski was convicted of theft-related offenses and ordered to pay $835 in restitution, but the trial court included items beyond those specified in the charging information and factual basis for his guilty plea. The appellate court reversed, holding that restitution must be limited to property encompassed within the original charges as presented at the plea hearing.
When a defendant agrees to pay restitution as part of a plea agreement, the defendant's agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered.
[1] A defendant's agreement to pay restitution as part of a plea agreement is limited to restitution arising out of the offense charged, as reflected in the information and t…
[2] When a restitution order includes items beyond those encompassed by the original charge and the factual basis for the plea, the order may be reversed and remanded.
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Join FLexlaw to unlock all legal intelligence“when a defendant agrees to pay restitution as part of a plea agreement, the defendant's agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered.”
This quote establishes the controlling legal standard that restitution agreements are limited to property within the original charges presented at the plea hearing.
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Join FLexlaw to unlock all legal intelligenceSiminski, living in his truck in a cemetery, was taken in by a benefactor who offered him a room. Siminski repaid this kindness by stealing a DVD play…
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Joseph Siminski appeals the award of restitution imposed upon him. We reverse and remand for another restitution hearing.
Facts
A kind-hearted benefactor aided Mr. Si-minski, who was living in his truck parked in a cemetery, by offering a room in his home until Mr. Siminski’s financial condition improved. Mr. Siminski repaid his benefactor by stealing from him a DVD player and several DVDs, a gas chain saw, and a bench grinder. Based on this, he was charged and pleaded nolo contendere to three counts of dealing in stolen property and one count of grand theft. At the plea hearing, the factual basis for the plea mentioned these stolen items and Mr. Si-minski agreed to pay restitution for them. The prosecutor estimated the restitution amount would not exceed $200. At the restitution hearing, several more items were claimed to be missing and ascribed to Mr. Siminski’s theft. Defense counsel objected to Mr. Siminski paying for more than the items originally claimed in both the information and as part of the factual basis for the plea. The trial court overruled the objection and ordered restitution of $835. Except for $70 which he admits he owes, Mr. Siminski challenges the order of restitution.
Analysis
This case is controlled by our recent decision in Malarkey v. State, 975 So.2d 538 (Fla. 2d DCA 2008), which issued after Mr. Siminski’s restitution hearing. See also Avery v. State, 838 So.2d 1247 (Fla. 2d DCA 2003); Noland v. State, 734 So.2d 464 (Fla. 5th DCA 1999); Stewart v. State, 629 So.2d 982 (Fla. 5th DCA 1993). The proceedings in Malarkey followed the same course as Mr. Siminski’s: the information identified certain stolen items; he pleaded to the charges and at the plea hearing agreed to pay for these items; but when it came time to set the restitution amounts, the State sought to include additional items. We reversed the order of restitution in Malarkey, saying,
when a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered.
975 So.2d at 540-41. In Malarkey, we reversed and remanded, allowing the State *1163to seek a restitution order “for only that property encompassed within the original charge against Malarkey as reflected by the affidavit supporting the arrest warrant and the discovery materials referenced by the State at the change of plea hearing.” Id. at 542.
The State’s argument based upon Hebert v. State, 614 So.2d 493 (Fla.1993), and Dent v. State, 432 So.2d 163 (Fla. 4th DCA 1983), in support of the restitution order is unpersuasive because both cases are factually distinguishable.
Conclusion
The record in Mr. Siminski’s case is unclear whether the discovery materials available to the defense at the time of the plea hearing included more items than those that were listed in the information and which the State anticipated as being compensable as restitution. Therefore, we reverse the order of restitution and remand for further proceedings in conformity with the rule as set forth in Malarkey.
Reversed and remanded.
ALTENBERND and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Medlin v. State, 180 So. 3d 1101 (Fla. 5th DCA 2015)…the trial court ordered restitution in the amount of $20,019. Medlin challenges this, ruling, (intending that the trial court abused its discretion by ordering restitution for . items unrelated to his convictions; We agree.1 In Siminski v. State, 1 So. 3d 1161, 1162-63 (Fla. 2d DCA 2009), the Second District reversed a trial court’s restitution order, writing: [WJheri a defendant agrees to pay restitution as part of a-plea agreement, the defendant’s agreement is limited to restitution arising out of the…
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Ferri v. State, 311 So. 3d 240 (Fla. 2d DCA 2020)…t affidavits and discovery materials provided to the defendant prior to entry of a plea to determine whether, as part of the factual basis for entry of the plea, the items for which restitution was awarded were listed. See, e.g., Siminski v. State, 1 So. 3d 1161, 1162-63 (Fla. 2d DCA 2009) (reversing restitution order and remanding where several items not listed in information or discussed during factual basis for the plea were claimed at the restitution hearing but where the record on appeal was unclear "w…
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T.J.J. v. State, 121 So. 3d 635 (Fla. 4th DCA 2013)…reement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea....” Malarkey v. State, 975 So. 2d 538, 540-41 (Fla. 2d DCA 2008); see also Siminski v. State, 1 So. 3d 1161, 1162 (Fla. 2d DCA 2009) (reversing a restitution award where, “[a]t the restitution hearing, several more items were claimed to be missing and ascribed to Mr. Siminski’s theft” than were listed in the factual basis for defendant’s plea). Here, as e…
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
- Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008)
- Noland v. State, 734 So. 2d 464 (Fla. 5th DCA 1999)
- Hebert v. State, 614 So. 2d 493 (Fla. 1993)
- Dent v. State, 432 So. 2d 163 (Fla. 4th DCA 1983)
- Stewart v. State, 629 So. 2d 982 (Fla. 5th DCA 1993)
- Avery v. State, 838 So. 2d 1247 (Fla. 2d DCA 2003)