County Criminal Court: CRIMINAL LAW – Sentencing – Error not to impose restitution where defendant admitted obtaining property by worthless check. Case remanded with instructions to impose restitution. State v. Cunningham, No. CRC 04-60 APANO, (Fla. 6th Cir.App.Ct. July 8, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

Appeal No. CRC 04-60 APANO

UCN522004AP000060XXXXCR

v.

 

WILLIAM B. CUNNINGHAM, III

 

            Appellee.

__________________________________/

 

 

Opinion filed ____________________.

 

Appeal from a sentence imposed by

the Pinellas County Court

Senior County Judge J. Tim Strickland

 

Christie Biggs, Esq.

Assistant State Attorney

ORDER AND OPINION

 

            (J. Morris)

 

            THIS MATTER is before the Court on the State’s appeal from a sentence imposed by the Pinellas County Court. After reviewing the brief and the record (the appellee failed to file an answer brief), this Court reverses the sentence.

            The defendant was charged with obtaining property by worthless check. He entered a plea of guilty to the charges and was sentenced. At sentencing the State asked that restitution be imposed for property that was obtained by the worthless check. The State had previously filed a Notice of Intent to Seek Restitution. The trial judge, however, refused to impose restitution, citing his philosophical aversion to imposing restitution in circumstances involving merchants.

            It was error not to impose restitution in this case. §775.089(1)(a), Fla.Stat. (2003) provides that: “the court shall order the defendant to make restitution to the victim for: (1) Damage or loss caused directly or indirectly by the defendant’s offense … unless it finds clear and convincing evidence not to order such restitution.” The defendant’s offense caused damage in this case, and the trial court’s philosophical aversion to imposing restitution to merchants is not a clear and compelling reason not to order restitution. Therefore, restitution should have been imposed as part of the defendant’s sentence in this case.    

            IT IS THEREFORE ORDERED that this case is remanded to the Pinellas County Court so that it can impose restitution in the appropriate amount as part of the sentence.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2005.

                                                                                    __________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    __________________________

                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

cc:        State Attorney 

            William Cunningham