NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

Robert Leroy Swendson,
Appellant,

State of Florida,
Appellee.

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Appeal from order of restitution of the
Pinellas County Court
County Judge J. Thomas McGrady

Joy K. Goodyear, Esq.
Assistant Public Defender

Attorney for Appellant

Jennifer Schick, Esq.
Assistant State Attorney
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE is before the Court on the Appellant’s appeal from the trial court’s order of restitution.  After reviewing the briefs and record, this Court affirms the decision of the trial court. On July 5, 1999, the defendant was cited for Driving Under the Influence after being involved in a motor vehicle accident.  On October 7, 1999, defendant entered a plea of nolo contendere and was sentenced to twelve months probation.  On July 20, 2000, at the restitution hearing, the defendant testified as to the following:

1.      He is employed full-time as a utility foreman for Wells Land Development and earns $1720.00 a month.
2.      He is currently going through bankruptcy.
3.      Financially, defendant supports his wife and two children, ages 9 and 11, who reside with him.
4.      His wife does not work.
5.      His mother-in-law lives with him.
6.      His expenses are $1700 per month, which includes fees and costs for felony probation, counseling that he is ordered to attend two nights a week, probation costs for the DUI, electric, water, food, an $830.00 mortgage payment and a car payment.

After hearing the testimony, the court ordered the defendant to pay restitution in the amount of $6038.67 at the rate of $175.00 per month.

The defendant argues that the trial court erred in ordering restitution in the amount of $6038.67 after the defendant demonstrated his inability to pay restitution.The appellate standard of 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. 2^nd 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).

This court finds that the amount of restitution ordered was commensurate with his financial condition and his ability to pay.  See Langston v. State, 616 So.2d 597 (Fla. 4^th DCA 1993). The defendant is perfectly able to work extra hours either at his current job or at an additional part-time job to fulfill his obligation.  Therefore, the trial court did not abuse its discretion in ordering restitution in the amount of $6038.67 at the rate of $175.00 a month.

It is therefore,ORDERED AND ADJUDGED that this Court affirms the trial court’s order of restitution.           

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 20^th day of March, 2000.     

Jennifer Schick, Esq.
Assistant State Attorney