DIANA K. THAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Diana K. Thar appeals her grand theft sentence challenging the trial court's restitution order imposed without her presence. The court reversed and remanded because Thar did not receive actual notice of the restitution hearing and the trial court prevented her from testifying about the notice failure at the rehearing motion.
The trial court erred in imposing restitution because there was no evidence of a knowing and voluntary waiver of Thar's right to be present, the State presented no evidence of voluntary waiver, and the court improperly refused to allow Thar to testify at the rehearing motion hearing about the notice issue.
[1] A trial court errs by proceeding with a restitution hearing in a defendant's absence unless the State demonstrates the defendant knowingly and voluntarily waived their ri…
[2] A defendant's waiver of the right to be present at a restitution hearing may be express or implied by voluntary absence.
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Join FLexlaw to unlock all legal intelligence“[Ujnless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.”
Establishes the legal standard that a knowing and voluntary waiver is required to proceed with restitution hearing in defendant's absence
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Join FLexlaw to unlock all legal intelligenceThar pleaded no contest to grand theft and was placed on probation with restitution to be set later. A restitution hearing was held on January 28, 200…
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Diana K. Thar appeals her judgment and sentence for grand theft specifically challenging the trial court’s order setting restitution and order denying her motion for rehearing on the order setting restitution. Because there is nothing in the record to show that Thar received actual no*1205tice of the restitution hearing and because the trial court failed to allow her to testify to that effect at the hearing on her motion for rehearing, we reverse the order of restitution and remand for the trial court to reconsider the issue of restitution after conducting a properly noticed evidentiary hearing at which Thar has an opportunity to be heard.
Thar entered a plea of no contest to the charge of grand theft. In imposing sentence, the trial court placed Thar on probation and reserved the right to set restitution at a later date. A restitution hearing was held on January 28, 2008. Thar was not present at this hearing, but her counsel, who was present, informed the court that he had left a message at Thar’s last known telephone number, adr vising her of the hearing. The State presented evidence on the amount of restitution, and the trial court ruled that Thar’s failure to appear constituted a default and that Thar had waived her opportunity to attend the restitution hearing and to contest the imposition of the restitution order. The trial court then orally imposed restitution in the amount of $1655. The amount was noted on the minutes from the hearing and signed by the judge.
On February 18, 2008, Thar moved for a rehearing on the restitution amount. Thar’s written motion indicated that Thar’s counsel had received notice of the hearing but that he had not forwarded that notice to her by mail because counsel did not have a current address for Thar. The motion further stated that counsel had left two telephone messages regarding the hearing at a number he had previously used to reach Thar but that Thar “contaet-ed the undersigned attorney after the restitution hearing had been concluded and advised that she did not receive notice of the hearing since the telephone number was no longer hers.”
On February 20, 2008, the trial court conducted a hearing on the motion for rehearing. The trial court asked defense counsel if he had any evidence that the telephone number no longer belonged to Thar. When defense counsel replied that Thar could testify to that fact, the trial court indicated that it would not accept her testimony but wanted “independent proof.” The court then denied the motion. This denial was also noted on the minutes for the hearing1 and signed by the judge.
“[Ujnless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008). Such a waiver “may be express, or it may be implied from the defendant’s voluntary absence.” Id.
In the instant case, the State presented no evidence that Thar voluntarily waived her presence at the hearing. This combined with the trial court’s refusal to allow Thar to testify at the hearing on her motion for rehearing left the record silent on the issue of the voluntariness of her failure 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).
*1206Accordingly, 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 and remand for the trial court to hold a new restitution hearing with proper notice to Thar.
Reversed and remanded.
SILBERMAN, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
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Phillips v. State, 198 So. 3d 789 (Fla. 2d DCA 2016)…and the parties. If no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview. . See Zaborowski v. State, 126 So. 3d 405, 407 n. 2 (Fla. 2d DCA 2013); Thar v. State, 8 So. 3d 1204, 1205 n. 1 (Fla. 2d DCA 2009); Cochrane v. State, 997 So. 2d 1221, 1223-24 (Fla. 2d DCA 2008) (Altenbernd, J., concurring); Woods v. State, 987 So. 2d 669, 672 (Fla. 2d DCA 2007); Akridge v. Crow, 903 So. 2d 346, 350-51 (Fla. 2d DCA 2005); Sutton v.…
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Windh v. State, 113 So. 3d 150 (Fla. 2d DCA 2013)…W.G. v. State, 945 So. 2d 597, 600 (Fla. 2d DCA 2006). Hence, “ ‘unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.’ ” Thar v. State, 8 So. 3d 1204, 1205 (Fla. 2d DCA 2009) (quoting Baker, 979 So. 2d at 455); see also J.A. v. State, 46 So. 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 r…
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Mason Ryan Pierce v. State, 133 So. 3d 1186 (Fla. 2d DCA 2014)…o. SC13-1250, 2013 WL 6331684 (Fla. Dec. 4, 2013). “[U]nless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.” Id. (quoting Thar v. State, 8 So. 3d 1204, 1205 (Fla. 2d DCA 2009)). To prove such a knowing and voluntary waiver, the State must establish that the defendant had notice of the hearing and that he intentionally did not appear or that he left the court during the proceeding. Baker v. State,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007)
- Monroe v. State, 760 So. 2d 289 (Fla. 2d DCA 2000)
- Zackery Holiday v. State, 730 So. 2d 830 (Fla. 1st DCA 1999)
- Baker v. State, 979 So. 2d 453 (Fla. 2d DCA 2008)
- Braswell v. State, 804 So. 2d 523 (Fla. 2d DCA 2001)
- C.Y. v. State, 989 So. 2d 1235 (Fla. 4th DCA 2008)