vs.                                                                   Appeal No. CRC 00-03670 CFANO




Opinion filed October 25, 2000.

Appeal from a decision of the Pinellas County Court

County Judge Thomas B. Freeman

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellant

Marie King, Esq.
Assistant State Attorney
Attorney for Appellee


            THIS CAUSE is before this Court on the Appellant’s appeal from the Pinellas County Court’s denial of Appellant’s Motion to Delete Restitution.   After reviewing the briefs and record, this Court affirms the decision of the trial court.

  On December 15, 1998, the Appellant was charged by information with Driving Under the Influence and Leaving the Scene of an Accident Involving Property Damage.  On November 30, 1999, she entered a plea of nolo contendre to the charges and was sentenced to twelve months probation.  The Judgment of Guilt and Placing Defendant on Probation form, dated November 30, 1999, and signed by the Appellant, provides at item (11) (f) “You will make restitution to be determined in an amount to be agreed upon between you and your Probation Supervisor, or set by Court Order after hearing which will be scheduled at your request, as follows: within 60 days.”

          On January 12, 2000, an affidavit of violation of probation was filed alleging that the Appellant had failed to pay her probation fees, fine, court costs, and had not started her community service hours.  The probation officer’s report on the violation listed the total amount due to be $930.00 with restitution to be determined. 

On February 10, 2000, defense counsel filed a Motion to Delete Restitution on the basis that the court lacked jurisdiction to enter a restitution order beyond the 60 days enumerated in the judgment and sentence.  On February 10, 2000, a restitution hearing was conducted and the court denied the defense’s motion and ordered restitution in the amount of $8600.00.

The Appellant raises two issues on appeal.  First, Appellant claims that the trial court erred in ordering restitution more than 60 days after the judgment and sentence were entered.  Section 775.089(1)(a) Florida Statutes (1999) requires a trial court to impose restitution upon a defendant at his sentencing or within a specified period thereafter. Furthermore, Fla. R.Crim. P. 3.800(c) provides that a legal sentence may be reduced or modified within sixty days after that sentence is imposed.

In State v. Sanderson, 625 So.2d 471 (Fla. 1993) the Court held that if an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.  Therefore, the relevant inquiry is whether an order of restitution was timely entered in this case.  Whether an order of restitution has been entered at any particular point is a question of fact and a court’s subsequent order setting the amount will be sustained on review if supported by competent substantial evidence in the record.  L.O. v. State, 718 So.2d 155 (Fla. 1998).

An examination of the language used in the Judgment of Guilt and Placing Defendant on Probation clearly indicates that restitution was in fact ordered at sentencing on November 30, 1999, with only the amount of such restitution left to be determined at a later date, clearly in compliance with the holding in Sanderson.   Therefore, there is competent substantial evidence to uphold the subsequently entered order, which merely set forth the amount of restitution and to whom it is owed.  The fact that the court specifically mentioned the sixty-day statutory requirement within its judgment does not thereafter invalidate its order imposing restitution where the court also specifically retained jurisdiction of the matter to set the amount of restitution at a later date.

The Appellants second issue on appeal is that the trial court erred in ordering restitution in the amount of $8600.00 after the Appellant demonstrated her inability to pay restitution.  The appellate standard or review in restitution amount matters is limited to determining whether the trial court abused its discretion.  See Moore v. State, 694 So.2d 836 (Fla. 2nd DCA 1997).  Discretion is abused only where no reasonable person would agree with the trial court’s decision. Banks v. State, 732 So.2d 1065 (Fla. 1999).

Appellant’s testimony at the restitution hearing demonstrated that she received $589.00 per month in Social Security Disability payments as the result of a mental disorder, which prevents her from working.  Appellant’s expenses total approximately $463.00 per month, leaving her with $126.00 per month, of which only $75.00 was ordered for restitution.  Appellant has no dependents and receives some support from her father.  Furthermore, no testimony was given whether the Appellant’s mental disorder is controllable or curable, and no documentation was provided to substantiate her claim that she was unable to work.

This court finds that the amount of restitution ordered was commensurate with her financial condition and her ability to pay.  See Langston v. State, 616 So.2d 597 (Fla. 4th DCA 1993).  Therefore, the trial court did not abuse its discretion in ordering restitution in the amount $8600.00 payable at the rate of $75.00 per month.  It is therefore,

ORDERED AND ADJUDGED that this Court affirms the decision of the trial court denying the Motion to Delete Restitution.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 25th day of October, 2000.


Circuit Judge
Primary Appellate Judge


Circuit Judge

Circuit Judge



Copies furnished to:

The Honorable Thomas B. Freeman

Joy K. Goodyear, Esq.
Assistant Public Defender
Criminal Justice Center
14250 49th Street North
Clearwater, FL 33762

Marie King, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, FL 33758