J.R., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution for a veterinary bill was improper as it was not mentioned in the plea colloquy or petition, but affirmed the remainder of the restitution award.
[1] Restitution may not be ordered for damages not included in the charging instrument or factual basis for the plea.
[2] Testimony regarding the purchase price of stolen items, along with their condition at the time of theft, can be sufficient to support a restitution award for fair market…
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Join FLexlaw to unlock all legal intelligenceJ.R. pleaded guilty to burglary and grand theft. The trial court ordered restitution, including a veterinary bill for an injured dog and the value of …
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J.R. appeals an order withholding adjudication and imposing probation after he pleaded guilty to burglary of an unoccupied dwelling and third-degree grand theft. See §§ 810.02(3)(b), 812.014(2)(c)(1), Fla. Stat. (2012). The trial court erred in ordering restitution for a veterinary bill. Consequently, we reverse in part.
The burglary victim testified at the restitution hearing that when she arrived home on the day of the burglary, her dog was injured. The veterinarian bill was $250. The trial court included this amount as restitution. The veterinary bill was not mentioned in the petition or in the factual basis the State set forth in the plea colloquy. See Malarkey v. State, 975 So.2d 538, 540-11 (Fla. 2d DCA 2008). The State properly concedes error on this point.
J.R. also contends that the total restitution amount of $4082 was not supported by competent substantial evidence; the victim testified as to only the purchase prices of the stolen items. The extent of the victim’s testimony is not fatal. See H.L.C. v. State, 950 So.2d 1268, 1269 (Fla. 5th DCA 2007) (holding testimony as to purchase dates and prices, condition at time of theft, and replacement values supported finding of fair market value); Bakos v. State, 698 So.2d 943, 944 (Fla. 4th DCA 1997) (affirming restitution award in part even though victim testified only to purchase price and not use, condition, or amount of depreciation). We note that the victim testified as to the condition of the stolen items. We affirm on this issue.
Finally, J.R. argues that the trial court erred in failing to address how much J.R. could reasonably be expected to earn to pay restitution. See § 985.437(2), Fla. Stat. (2013); M.W.G. v. State, 945 So.2d 597, 601 (Fla. 2d DCA 2006). We must affirm on this issue because J.R. failed to *781preserve it. We affirm without prejudice to J.R.’s right to petition for habeas corpus relief in the trial court. See J.E.P. v. State, 130 So.3d 764, 765 (Fla. 2d DCA 2014).
Affirmed in part and reversed in part.
ALTENBERND and KELLY, JJ., Concur.
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K. A. a., JR. v. State (Fla. 2d DCA 2023)…PER CURIAM. We affirm the disposition order withholding adjudication for grand theft motor vehicle without prejudice to K.A.A.'s right to seek postdisposition relief. See J.R. v. State, 141 So. 3d 780, 780-81 (Fla. 2d DCA 2014); cf. H.R. v. State, 298 So. 3d 1217, 1218 n.1, 1222-23 (Fla. 3d DCA 2020). CASANUEVA and BLACK, JJ., Concur. ATKINSON, J., Concurs in result only. Opinion subject to revision prior to official publication.…
Authorities Cited
- M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)
- Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008)
- Bakos v. State, 698 So. 2d 943 (Fla. 4th DCA 1997)
- H.L.C. v. State, 950 So. 2d 1268 (Fla. 5th DCA 2007)
- J.E.P. v. State, 130 So. 3d 764 (Fla. 2d DCA 2014)