FRANK J. ORLANDO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed a 54-month sentence for aggravated assault but vacated a restitution order that was imposed without notice or hearing, while rejecting the defendant's post-sentencing motion to withdraw his no-contest plea.
A trial court does not abuse its discretion in denying a motion to withdraw a no-contest plea when the plea colloquy supports that the defendant was not misled about consequences, but a restitution order must be vacated if imposed without notice and hearing.
[1] Restitution imposed without notice and hearing must be vacated even when a cost order for the same amount was properly pronounced.
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Join FLexlaw to unlock all legal intelligence“the imposition of restitution requires notice and a hearing”
Court cited Exilorme v. State for the proposition that restitution cannot be imposed without proper notice and hearing procedures.
Orlando pleaded no contest to aggravated assault with a deadly weapon and was sentenced to 54 months imprisonment plus 6 months probation. The trial c…
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Appellant was charged with aggravated assault with a deadly weapon and entered an open plea of no contest. The trial court sentenced appellant to fifty-four months imprisonment, followed by six months probation. The trial court also entered a cost order of $891 in favor of the Crimes Compensation Trust Fund for counseling services and a restitution order *1052of $891 for the same. Thereafter, appellant filed a motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(i), which the trial court denied after a hearing. The appellant alleged that he misunderstood the consequences of the plea and believed that he would be sentenced to no more than one year. We find no abuse of discretion in the trial court’s denial of the motion to withdraw plea since the plea colloquy and the evidence presented at the hearing support the trial court’s determination that appellant was not misled as to the possible consequences of his open plea. However, we agree with appellant that the restitution order must be stricken as the trial court orally pronounced the cost order of $891 in favor of the Crimes Compensation Trust Fund, but restitution was never addressed at the hearing. See Exilorme v. State, 857 So.2d 339, 340 (Fla. 2d DCA 2003) (noting that the imposition of restitution requires notice and a hearing). It appears that the restitution order in the instant case was simply entered by mistake.
We affirm the sentence but vacate the restitution order.
WARNER and TAYLOR, JJ., concur.