ALAIN J. PILON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An evidentiary error in a restitution hearing cannot be preserved for appeal by raising it for the first time in a motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b); a contemporaneous objection is required.
[1] An evidentiary error in a restitution hearing cannot be preserved for appeal by raising it for the first time in a motion to correct a sentencing error filed pursuant to…
[2] Evidentiary errors in restitution hearings are considered errors in the sentencing process, not sentencing errors, and thus require a contemporaneous objection to be pres…
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Join FLexlaw to unlock all legal intelligencePilón was convicted and ordered to pay restitution without objection at trial. He later argued in a Rule 3.800(b) motion that the evidence for restitu…
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The issue presented is whether an evi-dentiary error in a restitution hearing may be preserved for appeal by raising it for the first time in a motion to correct a sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b). We hold that it may not and that a contemporaneous objection is required.
Pilón was convicted of first degree arson and cruelty to animals and ordered to pay $15,000 in restitution. There was no separate restitution hearing in this case, and Pilón did not object when the trial court ordered him to pay restitution based on testimony given during trial. In his Rule 3.800(b) motion, however, Pilón argued for the first time that the evidence was not *993sufficient to establish the value of the lost items.
Although an error in a restitution order may constitute a sentencing error for purposes of Rule 3.800(b), the rule does not apply to errors in the sentencing process. See Jackson v. State, 983 So.2d 562, 573 (Fla.2008) (“rule 3.800(b) was not intended to circumvent rules requiring contemporaneous objections” or “to allow a defendant (or defense counsel) to sit silent in the face of a procedural error in the sentencing process and then, if unhappy with the result, file a motion under rule 3.800(b)”). We agree with Mapp v. State, 18 So.3d 33 (Fla. 2d DCA 2009), that evidentiary errors in restitution hearings are errors in the sentencing process rather than sentencing errors. Such evidentiary errors cannot be preserved by a Rule 3.800(b) motion and must be preserved by contemporaneous objection at the hearing. Id.
On the other hand, evidentiary errors regarding restitution computation that do not fall within Florida Rule of Appellate Procedure 9.140(e) still may be reviewed on appeal if they amount to fundamental error that “goes to the foundation of the case or goes to the merits of the cause of action.” Jackson, 983 So.2d at 568 (quoting Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994)). The asserted error in this case does not rise to the level of fundamental error. Accordingly, we affirm.
Affirmed.
WARNER and FARMER, JJ., concur.
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Citator
Cited By
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Rivera v. State, 34 So. 3d 207 (Fla. 2d DCA 2010)…restitution. Id. Cases citing Mapp have determined that errors regarding the sufficiency of evidence to support restitution amounts did not constitute fundamental error. See Warren v. State, 23 So. 3d 218, 219 (Fla. 1st. DCA 2009); Pilon v. State, 20 So. 3d 992, 993 (Fla. 4th DCA 2009). In addition, the Florida Supreme Court has previously stated, “We conclude that an unpreserved error in the assessment of costs cannot be considered a serious, patent sentencing error that should be corrected on appeal as f…
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L.W. v. State, 163 So. 3d 598 (Fla. 3d DCA 2015)…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 not have risen to the level of fundamental error had the issue not been preserved, see Pilon v. State, 20 So. 3d 992, 993 (Fla. 4th DCA 2009) (finding no fundamental error when the trial court made an evidentiary mistake in a restitution order), because before the trial court could make a finding that L.W. had violated his probation by failing to pay the restituti…
Authorities Cited
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)
- Mapp v. State, 18 So. 3d 33 (Fla. 2d DCA 2009)