IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
Appellant, Case No: 03-03924CFAES
Lower No: 02002213MMAES
Appeal from verdict, judgment and sentence Pasco County Court
County Judge Robert P. Cole
Joy K. Goodyear, Esq., A.P.D.
Attorney for Appellant
Dustin Anderson, Esq., A.S.A.
Attorney for Appellee
ORDER AND OPINION
matter came before the court on defendant's appeal from a judgment and sentence entered by the Pasco
County Court. Appellant claims that the
trial court committed reversible error by granting the state's motion to
correct sentence and adding restitution as a condition of probation after the
sentence had been entered and by reinstating Ms. VanHout's probation after she
had successfully completed her probationary term. This court has jurisdiction.
Appellant was convicted of battery on June 26, 2003. The trial judge stated: "Here's the sentence: It will be an adjudication of guilt, one year of probation. Conditions of your probation are that you pay a fine of $250, court costs of $121, that you attend and complete anger management counseling, pay a $200 Public Defender fee. I will agree to early termination of your probation upon successful completion of those conditions. What this means is, you can take up to 11 months to do this stuff or do it quicker and save on probation fees." The state then asked for restitution and the following transpired:
STATE: And there is restitution involved in this case.
COURT:What's the restitution?
COURT: For what?
STATE: The necklace and the-
COURT: You should have charged her with theft, counsel. I don't know what she did with the necklace. The evidence was she tore it off somehow and then it disappeared.
STATE: But there was also evidence that she left with the necklace.
COURT: Well, then charge her with theft if you-all want to do that. I am not going to order restitution for $800. I don't - you know, first of all, I don't know that that's the proper amount. Second of all, I don't believe it's appropriate. If you want to charge her with stealing the necklace, do it, but I am not going to make [the victim] well on a battery charge, because I don't believe that there is enough proof, in my mind, to show that she took the necklace. She might have ripped it off and dropped it. So, that's the sentence. . . .
On July 8, 2003, the State filed a Motion to Correct Sentence, in which it alleged that there was evidence that the necklace was damaged and lost as a result of the battery and that witnesses testified that the replacement cost of the jewelry was $800. The State argued that Florida Statute 775.089 provides, in pertinent part: "In addition to any punishment, the Court shall order the Defendant to make restitution to the victim for damage or loss caused directly or indirectly by the Defendant's offense, unless it finds clear and compelling reasons not to order such restitution...if the Court does not order restitution or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor. " The state further argued that the court may modify a legal sentence imposed by it to included any of the provisions of Chapter 948 within sixty days of the imposition pursuant to Florida Rule of Criminal Procedure 3.800. Per Florida Statute 948.032, restitution qualifies as one such provision which the court may include in a sentence modification.
On July 17, 2003, the court heard the state's Motion to Correct Sentence and add restitution. At that hearing, the state argued that a sentence without restitution was subject to modification. The state also argued that they need only prove that the necklace was damaged or loss, due to the battery, by a preponderance of the evidence. The defense argued that the state 'dropped the ball' and that if they were claiming this necklace the proper avenue would have been to charge her with petit theft or criminal mischief. Additionally, the defense argued that there was no proof as to the cost of the item. The court advised counsel that the state would have to prove the value at a restitution hearing. The court granted the motion to correct sentence and told the state to set a hearing; the court then stated "I believe that I was incorrect not, at least, considering restitution. . . . And if I feel that there are damages as a result of Ms. VanHout's actions, then I will make that part of her probation that she pay for the necklace." A notice of heaering to determine restitution was filed on July 30, 2003 and the hearing was scheduled for August 18, 2003.
On August 4, 2003, the court signed an order terminating Ms. VanHout's probation pursuant to her probation officer's request to terminate "as all conditions have been satisfied."
On August 18, 2003, the restitution hearing was held and the court ordered restitution in the amount of $800.
On August 25, 2003, the state filed a Motion to Reinstate Probation and set a hearing for September 4, 2003. The motion alleged that the termination of probation was done improperly because as of July 17 restitution was made a condition of her probation and this condition was not satisfied as of August 4, the date of termination. At the hearing the defense argued that the court lacked jurisdiction to modify probation after it announced that probation was terminated. The court asked "what if probation was terminated mistakenly? Probation shouldn't have been -- once I granted the motion to--let's see. On July 17, she was still on probation then. Her probation shouldn't have been terminated without restitution being made."
The defense argued that this was an enhancement, and the court must first find there has been a violation of probation before it can enhance or increase the conditions.
The trial court disagreed stating:
Well, I disagree with that. In this particular case, I didn't require restitution because I felt that it didn't apply. The state filed a motion to correct sentence and convinced me that it did apply, and that's why I corrected the sentence to show that she will be required to pay restitution. So, the motion is granted. Now I expect them to take an appeal from this, but I think it's very clear that the motion to correct sentence was granted prior to the probation being terminated. So it would appear to me that the probation was terminated in error, not because she has successfully completed the probation, and then I added something after she had been terminated from probation.
The court ordered the probation to be reinstated and further ordered it be one year from the date of June 26, 2003, which was the date that she was convicted at trial. This Court finds that the trial court erred.
Rule of Criminal Procedure 3.800 allows a trial court to modify a legal
sentence so long as it is within a sixty day window from the time of the
sentencing, including restitution. Bunch v. State, 745 So. 2d 400 (Fla.
5th DCA 1999). As argued by the state,
the absence of a restitution order pursuant to section 775.089(1)(a), Florida
Statute, can render a sentence incomplete and subject to modification, so long
as it is within the sixty day window. Critton v. State, 619 So. 2d 495
(Fla. 1st DCA 1993). It is undisputed
that restitution was ordered within the sixty day window. The real issue in this case is whether or not
the trial court may enter an order reinstating probation once a final order
terminating probation has been entered.
It appears that a court may reinstate probation after a final order of
termination only under very limited circumstances. Specifically, an order of
discharge may only be set aside where there is evidence of extrinsic fraud upon
the court by defendant. Driscoll v. State, 538 So. 2d 1283 (Fla. 1st DCA
1989) (only a final order of discharge affected with extrinsic fraud such as to
render it void ab initio may be set
aside because it is of no force and effect from its inception) ; See also, K.E.H. v. State, 802 So. 2d 395 (
ORDERED AND ADJUDGED that the Order Reinstating Probation is REVERSED.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Office of the Public Defender
Office of the State Attorney
 Apparently, the parties agreed on restitution in the amount of $800.