JACOB C. KLEINTANK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed Kleintank's sentence for burglary with battery, attempted robbery, and aggravated battery, but reversed the trial court's improper conditions of probation requiring payment of incarceration costs and an erroneous restitution order entered after notice of appeal.
A trial court lacks jurisdiction to enter a restitution order after a notice of appeal has been filed, and costs of incarceration must be imposed as a civil restitution lien under statute rather than as a condition of probation.
[1] A trial court loses jurisdiction to enter a restitution order once a notice of appeal has been filed.
[2] Costs of incarceration must be imposed as a civil restitution lien under section 960.292, Florida Statutes, rather than as a condition of probation.
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Join FLexlaw to unlock all legal intelligenceKleintank pleaded no contest to burglary of a structure with battery, attempted robbery with a deadly weapon, and two counts of aggravated battery wit…
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Jacob C. Kleintank appeals his sentence following no contest pleas to burglary of a structure with a battery, attempted robbery With a deadly weapon, and two counts of aggravated battery with a deadly weapon. We affirm without comment, except as to two matters. As a condition of pro-, bation following Kleintank’s release from prison, the trial court required Kleintank to pay the cost of his incarceration. The State properly concedes that pursuant to section 960.292, Florida Statutes (2014), the proper remedy is a civil restitution lien. On remand, the trial court shall strike this as a condition of probation, but may enter a civil restitution .lien as authorized by. statute.- See Harrin v. State, 157 So.3d 845, 346 n. 1 (Fla. 5th DCA 2015). The State also concedes that the trial court erred by entering a restitution order when it did not have jurisdiction to do so. Once a notice of appeal has been filed, the trial court lacks jurisdiction to enter a restitution order. See Farley v. State, 55 So.3d 721, 721-22 (Fla. 5th DCA 2011). Accordingly, we strike the restitution order. On remand,' the trial court may conduct a restitution hearing with Kleintank present. See Williams v. State, 76 So.3d 410 (Fla. 1st DCA 2012) (holding defendant has constitutional right to be present at restitution hearing unless defendant knowingly, intelligently, and voluntarily waives that right).
AFFIRMED in part; REVERSED in part; and REMANDED.
PALMER, J., and TURNER, T.W., Associate Judge, concur.
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- White v. State, 76 So. 3d 410 (Fla. 1st DCA 2012)
- Daniela Connelly v. Shang HAI Chinese Rest. & Lounge, Inc., 55 So. 3d 721 (Fla. 1st DCA 2011)
- Farley v. State, 55 So. 3d 721 (Fla. 5th DCA 2011)
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